U.S. v. Richards

• Decision Date: 02 March 1981
• Docket Number: No. 78-5728,78-5728
• Citation: 638 F.2d 765
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond RICHARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 765

638 F.2d 765

UNITED STATES of America, Plaintiff-Appellee, v. Raymond RICHARDS, Defendant-Appellant.

No. 78-5728.

United States Court of Appeals Fifth Circuit.

March 2, 1981.

Rehearing Denied June 11, 1981.

Milton E. Grusmark, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Linda Carroll, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Under the border search doctrine, federal agents may without a warrant inspect mail arriving in this nation from abroad. We here consider whether the foreign mail may be followed into the hands of its addressee and, immediately after delivery, be seized and searched without a warrant. Concluding that such a search is permitted by the border search rule when there has been continuous surveillance of the mail and reasonable suspicion that it contains contraband, we deny a motion to suppress the results of the search and affirm the conviction of the recipient for possession of heroin with intent to distribute it.

I. The Facts

On December 5, 1977, Raymond Richards, an airline steward stationed at the Miami International Airport, applied for a post office box at the Miami Springs, Florida post office, located near the airport. He designated the boxholder as Mehling Arts & Crafts, furnished identification showing that he was Christopher Thompson and signed the application in that name. The application was approved and a box assigned to Mehling was opened for use on December 15.

On March 2, 1978, a sealed parcel addressed to Mehling Arts & Crafts at the Miami Springs box number arrived at the Foreign Mail Center in New York. The customs declaration stated that it contained Thai silk and uncut stones. The parcel was opened and inspected by a customs agent who found 10 cigarette packages. He opened one of these, found cigarettes and sent the parcel to another officer for further inspection because it appeared to contain a tobacco product. The second officer opened two more cigarette packages; each contained vials of material that on field test was found to be heroin. Neither the amount of heroin in the parcel nor its strength was established in New York.

The parcel was reassembled, resealed and sent to the postal inspector in Miami in a locked pouch for controlled delivery. Government agents delivered it to the Miami Springs post office on March 13 with instructions to put a notice of arrival in the Mehling box. A postal employee testified that she had never seen mail in the Mehling box until this parcel arrived. Drug Enforcement Administration agents set up surveillance of the box and waited for someone to claim the parcel.

Richards arrived in a half hour or less, received the notice and asked for the package. There was a slight delay because he had no identification showing a connection with Mehling, but the package was given to him. Government agents watched Richards take the package. They continued to observe him as he walked out of the building, down a side street for a short distance and into a parking lot behind the post office. The agents exercised care to assure that he had no opportunity to leave the scene with the parcel. They arrested him just as, or just after, he entered his car. The agents addressed Richards as Christopher Thompson and he responded by giving his correct name. The agents gave him Miranda warnings and asked him why he had picked up the package. He replied by asking the agents what was in the parcel. When they told him that it contained narcotics, Richards said he knew nothing about it. He explained that someone had telephoned him, asked him to pick up the package and promised to pay him for doing so.

The government agents took Richards to a police facility a few blocks away. He was fingerprinted, photographed, booked and placed in a holding cell. While he was there, the sealed parcel was opened without a warrant outside of his presence. Later its contents were analyzed by a chemist, who found 27.4 grams of 93% heroin hydrochloride. He estimated that, when "cut," it would produce 12,000 street level doses.

Richards was indicted for possession of heroin with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). At his trial, he testified that he operated a mail order business importing and selling uncut gems and maintained a postal box at the Miami post office in connection with that business. According to his testimony, Richards had recently started Mehling Arts & Crafts as a mail order export-import business and needed a separate post office box for it, but none was available at the Miami post office. He testified that he used a false name to apply for the Miami Springs box because he feared that operating two outside enterprises might affect his job as a steward. A personnel administrator for the airline testified that it was permissible for the company's employees to have outside jobs and that many held other jobs, but he acknowledged that in some circumstances outside employment might have an adverse affect on an employee's job.

II. Sufficiency of the Evidence

To prove commission of the crime of possession of heroin with intent to distribute it, the government must establish three essential elements: (1) knowing (2) possession of heroin (3) with intent to distribute it. United States v. Johnson, 469 F.2d 973, 976 (5th Cir. 1972); United States v. James, 555 F.2d 992, 999 (D.C.Cir.1977). Richards contends the evidence was insufficient to prove either that he knew the parcel contained a controlled substance or that he had the intention of distributing it.

Our review of the jury verdict is limited to determining whether the trier of fact could reasonably conclude that the evidence excludes every reasonable hypothesis, except that of guilt. United States v. Hawkins, 614 F.2d 85, 87 (5th Cir.), cert. denied, 446 U.S. 955, 100 S.Ct. 2926, 64 L.Ed.2d 814 (1980), United States v. Squella-Avendano, 478 F.2d 433, 436 (5th Cir. 1973). The issue of guilt remains a question for the jury unless we conclude that the jury must necessarily have had a reasonable doubt. United States v. Shaw, 555 F.2d 1295, 1300 (5th Cir. 1977); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). The supporting evidence may be direct or circumstantial and we do not discriminate against sufficiently probative evidence because it is indirect. Id. at 825.

The evidence, examined in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), establishes that: (1) Richards opened the post office box in a false name and had no convincing explanation for doing so; (2) no mail except the parcel containing heroin had come to the post office box in the three months during which it was rented; and (3) the excuse Richards advanced after he was arrested that someone else had asked him to pick up the package, was in truth inculpatory and indicated guilty knowledge because the package was addressed to his company and he had rented the box.

These facts are circumstantial evidence on the issue of knowledge. Because no one has a window to a man's mind, knowledge must often be proved by indirect evidence. Johnson v. Wright, 509 F.2d 828, 831 (5th Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 384 (1975); Jackson v. United States, 330 F.2d 679, 681 (8th Cir.), cert. denied, 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58 (1964). The evidence was sufficient to permit the jury to infer that Richards knew from what he said and did that the package contained narcotics. See also United States v. Squella-Avendano, 478 F.2d 433 (5th Cir. 1973) (similar amount of evidence held sufficient).

Richards having indisputably possessed heroin when he was arrested, we are left only with the question whether the evidence was sufficient to support the jury's conclusion that he intended to distribute it. That intention may not be inferred from possession alone, for contraband may be destined for personal use, not distribution. However, the possession of a quantity of narcotics so large that it could not be used by the possessor alone justifies the conclusion that he had an inventory for distribution rather than personal consumption. See United States v. Grayson, 625 F.2d 66 (5th Cir. 1980); United States v. Soto, 591 F.2d 1091, 1103 (5th Cir.), cert. denied, 442 U.S. 930, 99 S.Ct. 2862, 61 L.Ed.2d 298 (1979); United States v. Raffo, 587 F.2d 199, 201 (5th Cir. 1979); United States v. Johnson, 469 F.2d 973, 977 (5th Cir. 1972). The jury was warranted in concluding that one who possessed 12,000 doses of heroin did not intend to use the supply merely for personal euphoria. If, therefore, the warrantless post-delivery search was constitutionally proper and the evidence derived from it was properly admitted, the essential elements of the crime were proved.

III. Search of the Package

Richards does not challenge the admissibility of evidence obtained from the initial search of the package in New York and the field test that first disclosed its contents. He stipulated that the package contained heroin when searched in New York and that the chain of custody between New York and Miami Springs was complete. Because the initial test did not establish the quantity of heroin in the package, however, the second search was crucial to proving his intent to distribute.

A. Standing to Assert Fourth Amendment Rights

The question of Richards' standing to contest the search was not raised in the court below. On appeal the government argued proleptically that the Supreme Court decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), foretold the coming demise of the concept of "automatic standing" for possessory crimes. In United...