U.S. v. Restrepo-Granda

• Decision Date: 19 June 1978
• Docket Number: RESTREPO-GRANDA,No. 77-5550,77-5550
• Citation: 575 F.2d 524
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco, a/k/a Dario Toro Garces, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 524

575 F.2d 524

UNITED STATES of America, Plaintiff-Appellee, v. Francisco RESTREPO-GRANDA, a/k/a Dario Toro Garces Defendant-Appellant.

No. 77-5550.

United States Court of Appeals Fifth Circuit.

June 19, 1978.

Donice Alverson, New Orleans, La. (Court-appointed), for defendant-appellant.

John P. Volz, U. S. Atty., Mary Wm. Cazalas, Ronald Fonseca, Irving J. Warshauer, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court For the Eastern District of Louisiana.

Before BROWN, Chief Judge, AINSWORTH and VANCE, Circuit Judges.

VANCE, Circuit Judge.

This is an appeal by Francisco Restrepo-Granda from his conviction under all counts of a three-count indictment. ¹

In Count 1 he was charged with unlawful importation of 1,943.6 grams of cocaine. In Count 2 he was charged with possession with intent to distribute the cocaine. Count 3 charged him with unlawful use of a passport and visa issued to another person. He was sentenced to ten years under each of the first two counts and five years on Count 3, together with a special three-year parole term as required by 21 U.S.C. § 841. All three terms of imprisonment will run concurrently.

Appellant is a resident of Medellin, Colombia. On December 11, 1976 he arrived at New Orleans, Louisiana on a flight from Panama City, Panama. He held a round-trip ticket and carried a Colombian passport and a United States visa, both issued in the name of Dario Toro Garces. He passed the preliminary customs inspection by presenting a standard customs declaration and offered his suitcase for search. During the course of the inspection the customs official became suspicious because of the thickness and weight of several coathangers. She completed her inspection and summoned a customs police officer, Charles Meaders, whom she informed of her suspicions.

Meaders ordered the appellant to a secondary inspection area for a more thorough examination of his luggage, clothing and personal effects. In the course of the examination, Officer Meaders also noticed that the coathangers were "very thick." He drilled a small hole in one of the hangers and discovered a white, powdery substance which field tested positive for cocaine. He subsequently drilled holes in all seven coathangers discovering that all contained cocaine.

The appellant was advised of his rights in Spanish and was questioned. He revealed his true identity but denied any knowledge of the cocaine. The story which he told during the course of his questioning was that he was from Colombia and had come to the United States with the aid of a "Mr. Winters," whom he had met in Colombia on or about November 15, 1975. The passport, visa and suitcase had been furnished him by Mr. Winters. He was to go to a local motel where he would be met by individuals unknown to him. He was to give them the suitcase. Mr. Restrepo-Granda was asked whether he wanted to cooperate by going to the motel to wait for the individuals, but he declined.

In his own defense, appellant testified and gave additional details. He stated that in Medellin, Colombia he was employed at various times as a taxi driver and automobile broker and that when he left he was earning approximately $25 a week. He stated that five or six days before he left Colombia he was approached by an American named "Mr. Winters" in a park in Medellin. During conversations with Mr. Winters, Restrepo-Granda related that he was dissatisfied with his employment and his future in Colombia. He stated that Winters offered to help him move to the United States. Restrepo-Granda testified that he was unable to obtain a United States visa because he did not have enough money. Winters offered to provide him with an illegal passport if he would be willing to take the risk. Appellant agreed and Winters supplied him with a Colombian passport and an American visa. Restrepo-Granda did not have a suitcase which was large enough, so Winters also offered to lend him a suitcase. He turned over to Winters his savings of 22,000 Colombian pesos, his clothes, and also gave Winters a photograph of himself.

According to appellant's testimony, Winters returned the suitcase to him packed with appellant's own clothes, gave him the American equivalent of the 22,000 pesos (approximately $700 to $800) and the passport with his photograph in it. He says that Winters informed him that he also had sent his photograph to a friend who would meet him at the airport in New Orleans. He was to stay in a motel for a couple of days until Winters' friend found living quarters and employment for him. It was Restrepo-Granda's testimony that he never asked and was not informed of the name or description of the person or persons he was to meet at the New Orleans International Airport.

Restrepo-Granda then paid his landlord one month's rent in advance and left Colombia on the 8th or 9th of December for the island of San Andres. From there he caught a flight to Panama City and left for New Orleans on the 11th. He claims that during the entire three-day trip he never observed the cocaine-filled coathangers. He opened the packed suitcase when Winters first gave it to him and saw that it was "well organized." He testified that thereafter he only opened his suitcase at its corner in order to get out necessary items and that with the exception of a shirt he never changed his clothes.

Appellant first contends on appeal that the evidence is insufficient to establish the knowledge required for conviction under the first two counts. In determining whether the evidence was sufficient to support a conviction, all evidence and reasonable inferences therefrom must be viewed in the light most favorable to the government. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). On appeal it is our function to determine whether a reasonably minded jury could accept as adequate and sufficient the evidence to support the conclusion of defendant's guilt beyond a reasonable doubt. United States v. Alonzo, 571 F.2d 1384 (5th Cir. 1978); U. S. v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).

Although knowledge that the substance imported is a particular narcotic need not be proven, 21 U.S.C. 952(a) is a "specific intent" statute and requires knowledge that such substance is a controlled substance. U. S. v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); U. S. v. Zapata, 497 F.2d 95, 98 n. 7 (5th Cir. 1974). Like other facts knowledge is subject to proof by circumstantial evidence. See e. g., Montoya v. U. S., 402 F.2d 847 (5th Cir. 1968).

In passing on the sufficiency of such evidence, we view it in the light of the surrounding circumstances. Thus, in Barnes v. United States,412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), the accused was convicted of possession of United States Treasury checks "knowing them to be stolen." Barnes possessed stolen Treasury checks payable to persons that he did not know. He provided no plausible explanation for such possession consistent with his innocence. The supreme court upheld his conviction reasoning: "On the basis of this evidence alone, common sense and experience tell us that petitioner must have known or been aware of the high probability that the checks were stolen." Barnes, supra, at 845, 93 S.Ct. at 2363.

Under undisputed facts, the appellant here was shown to have entered the United States with a round-trip plane ticket from Panama City, Panama after paying his rent in Colombia for a month in advance. He entered with a passport and visa that he knew were illegal. He entered with almost four and one-half pounds of cocaine which has a street value of over one million dollars. The cocaine was contained in seven coathangers which were inordinately heavy and thick. From their nature, the jury could have concluded that the coathangers must have been fabricated with considerable effort and care and for the special purpose of transporting the contraband. His inherently improbable story does not provide accused with a plausible explanation for his possession of the cocaine consistent with his innocence. When the cocaine was discovered, the appellant refused the customs official's suggestion that he assist them in apprehending the person or persons whom he claimed were to meet him at the airport or later at a designated motel. With these facts we conclude that there was sufficient circumstantial evidence to support a finding that this appellant had knowledge of the presence of the controlled substance in his suitcase.

A more thorough examination of the meaning of "knowingly" as used in the statutes is required because of appellant's contention that the trial judge erred by giving a "deliberate ignorance" charge. ² Appellant's contention poses the question as to whether required knowledge can be established by proof of deliberate ignorance. The term as used denotes a conscious effort to avoid positive knowledge of a fact which is an element of an offense charged, the defendant choosing to remain ignorant so he can plead lack of positive knowledge in the event he should be caught.

In Turner v. United States, 396 U.S. 398, 416 n. 29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610 (1970), the supreme court adopted the Model Penal Code definition in defining "knowingly" as used in 21 U.S.C. § 174, the predecessor of section 841. ³ The model code section reads:

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 it does not exist. Model Penal Code § 2.02(7) (Proposed official draft, 1962).

Turner was found guilty of possessing heroin that he knew was a smuggled drug. Turner may not have had actual knowledge of who smuggled the heroin or when or how the smuggling was done, but the court pointed out that very...