United States v. LaFroscia, 87
| Decision Date | 25 September 1973 |
| Docket Number | No. 87,Docket 73-1753.,87 |
| Citation | 485 F.2d 457 |
| Parties | UNITED STATES of America, Appellee, v. Peter E. LaFROSCIA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter L. Truebner, Asst. U. S. Atty., (Paul J. Curran, U. S. Atty. S. D. N. Y., and John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.
Paul K. Rooney, New York City (Elliot L. Evans, New York City, of counsel), for defendant-appellant.
Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
Peter Edward LaFroscia appeals from a judgment of the District Court for the Southern District of New York, convicting him, after a verdict, of importing some 78½ kilograms of marijuana in violation of 21 U.S.C. § 952(a), and of bringing and possessing on board the M. S. Michaelangelo the same quantity of marijuana in violation of 21 U.S.C. § 955.
LaFroscia arrived in New York on June 22, 1972, after a week's voyage on the Michaelangelo from Algeciras, Spain. After leaving the ship and going through Customs, he waited on the pier for the unloading of his Volkswagen camper. When the camper arrived on the pier, Customs Patrol Officers Heaton and Ruggiero searched it and found some 54½ kilograms of marijuana in the gasoline tank cavity. The tank, they discovered, had been truncated and welded so that it was only a third of its normal size, and the marijuana had been secreted between the altered tank and the fire wall. Some three months later Customs agents who were repairing the car in the Customs garage found another 24 kilograms of marijuana hidden between the roof and the ceiling. LaFroscia was arrested promptly after the initial search, and various papers were removed from his person.
LaFroscia properly does not contest the validity of the Customs search; apart from the suspicions generated by his conduct on the pier, it was Customs policy at the time to search all cars arriving at New York from a foreign origin. This is plainly lawful. See Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); United States v. Thirty-seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Henderson v. United States, 390 F.2d 805, 808 (9 Cir. 1967); United States v. Summerfield, 421 F.2d 684, 685 (9 Cir. 1970). He likewise does not question that discovery of the large quantity of marijuana in the gasoline tank afforded probable cause for his arrest and the incidental search of his person. Apart from requesting us to reconsider United States v. Kiffer, 477 F.2d 349 (2 Cir.), petition for cert. filed, 42 U.S.L.W. 3001 (U.S. June 21, 1973) (No. 72-1730), sustaining the classification of marijuana as a controlled substance in Schedule I of the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C. § 801 et seq., which we decline to do, he asks us to hold that the evidence was insufficient to permit submission of the issue of guilty knowledge to the jury and that a question asked by the prosecutor, to which the judge sustained prompt defense objection, required the more drastic remedy of declaration of a mistrial.
The claim of insufficiency of the evidence is so insubstantial that we would have affirmed the conviction from the bench if it had stood alone. LaFroscia argues that his conduct on the pier, before and after the seizure, did not depart sufficiently from the norm to warrant an inference of guilty knowledge. We need not debate this, for that evidence, although significant, was only part of the total, which included LaFroscia's own testimony. Taken as a whole, the evidence almost compelled a finding of guilty knowledge. LaFroscia's bizzare itinerary in Europe included three trips between Germany and Torremolinas, Spain, within less than six weeks, the last being after Mrs. LaFroscia had returned to the United States to care for a sick baby. He failed to provide any plausible explanation how such a large quantity of marijuana could have gotten into the Volkswagen without his knowledge.1 Despite his small means, he spent $405 to ship the damaged Volkswagen and $380 to...
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