U.S. v. Rada-Solano

• Decision Date: 05 September 1980
• Docket Number: RADA-SOLAN,No. 80-5021,D,80-5021
• Citation: 625 F.2d 577
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jairo Enriqueefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 577

625 F.2d 577

UNITED STATES of America, Plaintiff-Appellee, v. Jairo Enrique RADA-SOLANO, Defendant-Appellant.

No. 80-5021

Summary Calendar.

United States Court of Appeals, Fifth Circuit,

Unit B.

Sept. 5, 1980.

Lawrence N. Rosen, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Linda Collins Hertz, Donald L. Graham, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.

PER CURIAM:

In this case involving a two-count conviction for possession of cocaine with intent to distribute and importation, 21 U.S.C.A. §§ 841(a)(1), 952(a), defendant challenges first, the admission for impeachment purposes of illegally obtained statements; second, a jury instruction on deliberate ignorance; and third, the sufficiency of the evidence. Concluding these contentions lack merit, we affirm.

Defendant arrived at the Miami International Airport on a flight from Calle, Colombia, South America. A customs inspector noticed that the sides of one of defendant's two suitcases, which contained men's clothing, a poncho, blankets and coffee, were unusually thick. Customs agents drilled holes in the walls of the suitcases, and found cocaine hidden in a formica compartment behind the suitcases' lining.

Defendant, a Colombian who had lived in the United States for nine years, testified he traveled to Colombia to visit his ailing grandmother. While there, he met Juan Torres, an acquaintance from Miami, who sold defendant the two suitcases. Torres, defendant testified, had asked defendant to bring coffee, blankets and ponchos to Torres' family in the United States. Defendant testified he was unaware the suitcases contained cocaine, and that nothing about the bags raised any suspicions.

First, defendant challenges the introduction by the Government of certain statements made by him to a DEA agent shortly after his arrest. The district court had previously granted a motion to suppress the statements as having been obtained in violation of defendant's Miranda rights. After defendant testified, however, the court allowed the statements to be introduced on rebuttal. The statements conflicted with defendant's trial testimony regarding the details of his agreement with Torres and tended to impeach his credibility.

Since the filing of defendant's brief, the Supreme Court, overruling the prior precedent in this Circuit, United States v. Havens, 592 F.2d 848 (5th Cir. 1979), has held that a defendant's credibility may be impeached by a prior conflicting statement, even though the statement could not be used to establish the prosecution's case-in-chief. The Supreme Court held:

(A) defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained that is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt.

United States v. Havens, --- U. S. ----, ----, 100 S.Ct. 1912, 1917, 64 L.Ed.2d 559, 566 (1980). The questions which elicited defendant's responses here during cross-examination were within the confines of his direct testimony. Use of the suppressed statements for impeachment purposes was proper. The district court, moreover, gave an appropriate limiting instruction. Reversal is not warranted on this point.

Second, defendant challenges the district court's so-called "deliberate avoidance of positive knowledge" charge:

A defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know what controlled substance he possesses.

The Defendant has testified he had no knowledge. Now, in this connection bear in mind that one may not willfully and intentionally remain ignorant of a fact important and material to his conduct, in order to escape the consequences of the criminal law.

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that...