Filed: Mar. 19, 2008
Latest Update: Feb. 22, 2020
Summary: substance heroin.Dominican Republic.crimes--whether Ayala possessed the drugs knowingly is at issue;-5-, flour or coffee be packaged in such a strange fashion she did not know Miguel's last name, or phone number, or Ivelisse's phone number; United States v. Stark, 499 F.3d 72, 80 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 06-2781
UNITED STATES OF AMERICA,
Appellee,
v.
JUSTINA JACQUELINE AYALA-TAPIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Keenan,* Senior District Judge.
Elfrick Mendez-Morales, by appointment of the court, on brief
for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodriguez-Velez, United States
Attorney, on brief for appellee.
March 19, 2008
*
Of the Southern District of New York, sitting by designation.
BOUDIN, Chief Judge. Justina Ayala-Tapia traveled by
overnight ferry from the Dominican Republic to Puerto Rico,
arriving at the Mayaguez port on February 1, 2006. Customs
officials searched her luggage after an x-ray scan raised their
suspicions; they discovered four heavily wrapped packages which,
according to a field test and a drug-sniffing dog, contained
narcotics. Later testing confirmed the presence of approximately
3.5 kilograms of heroin.
Ayala told the officials that the packages were given to
her by a friend in the Dominican Republic, to be delivered to a man
named Miguel waiting outside the port. She agreed to participate
in a controlled delivery but Miguel, perhaps tipped off by the
delay (or perhaps a fictitious character), did not show up.
Thereafter, Ayala was indicted on one count of importing, and one
count of possessing with intent to distribute, the controlled
substance heroin. 21 U.S.C. §§ 841(a)(1), 952(a) (2000).
She went to trial in Puerto Rico's federal district court
in April 2006. The government called the customs officials who had
searched Ayala's bag, discovered the packages and conducted the
field test; the parties stipulated to the weight and purity of the
heroin. The government also presented expert evidence from a DEA
agent about the street value of the seized heroin and the methods
used to smuggle drugs onto the island.
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Ayala testified as the only witness in her defense. She
did not dispute that she had possessed the heroin but denied that
she knew the packages contained the drug. She said that a friend
named Ivelisse had asked her to bring the packages to Ivelisse's
brother Miguel in Puerto Rico. Ayala claimed that she believed the
packages to contain coffee and flour, possibly for use in Miguel's
bakery. She was to meet him outside the port and, in exchange, he
would give her a ride to the San Juan airport, from where she would
fly back to her residence in New York.
Ayala explained that she would frequently travel to the
Dominican Republic via Puerto Rico because her son lived in the
former and her mother in the latter. She also claimed to earn a
living by buying clothing in New York and selling it in the
Dominican Republic. She supplied some further information about
Ivelisse but not about how to contact her and said that she had no
further information about Miguel or how to reach him.
The jury returned convictions on both counts. The
district judge denied Ayala's motion for judgment of acquittal,
Fed. R. Crim. P. 29, and on November 2, 2006, sentenced her to the
statutory minimum (given the drug quantity) of 120 months in
prison. 21 U.S.C. § 841(b)(1)(A). The judge rejected Ayala's
request to apply the "safety valve" exception to the mandatory
minimum, 18 U.S.C. § 3553(f) (2000); U.S.S.G. § 5C1.2; the judge
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found that Ayala had not met the requirement of truthfully telling
the government all she knew about the drug venture.
On appeal, Ayala first contests the sufficiency of the
evidence to support her convictions. Only one element of the
crimes--whether Ayala possessed the drugs "knowingly"--is at issue;
if Ayala knowingly possessed the heroin, the large quantity itself
provides the basis for an inference of intent to distribute.
United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993). If
she truly believed that the packages contained flour or coffee,
then she committed no crime. We consider de novo whether the
government presented evidence from which a rational jury could
conclude beyond a reasonable doubt that Ayala knew she was carrying
drugs. United States v. Mateos-Sanchez,
864 F.2d 232, 238 (1st
Cir. 1988).
As is common in drug courier prosecutions, there was no
direct evidence of what Ayala knew; whether the jury could
reasonably infer knowledge depends, as common sense would suggest,
on the surrounding facts and circumstances. Compare United States
v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.) ("[M]ere possession of
a substantial quantity of drugs may be sufficient to support an
inference of knowing possession."), cert. denied, 498 U.S. 961
(1990), with United States v. Jackson,
55 F.3d 1219, 1226 (6th
Cir.) (if drugs are found in "hidden compartment" then additional
evidence is necessary), cert. denied,
516 U.S. 926 (1995).
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The government points to a number of factors that make
the finding of guilty knowledge plausible in this case. As the
government expert testified at trial, the drugs had a very
substantial street value--approximately $300,000--and drug
suppliers might be unwilling to entrust such valuable cargo to an
ignorant courier, fearing that she might be insufficiently
motivated to ensure that it safely reaches its destination. We
have acknowledged that this is a reasonable inference. United
States v. Thomas, 467 F.3d 49, 54 (1st Cir. 2006) (smugglers opt
"for trusted and close associates . . . who are aware of the high
stakes"), cert. denied,
127 S. Ct. 1850 (2007); see also United
States v. Rodriguez,
192 F.3d 946, 950 (10th Cir. 1999) (collecting
cases).1
Ayala acknowledged placing the packages in her luggage;
this is not a case of a hidden compartment or the professed
surprise discovery of items packed by another. See United States
v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990). The heavy
wrapping made it impossible to tell what was inside, but that could
easily cut against Ayala's story in the jury's mind; why would
1
The opposite inference is also possible, see United States v.
Del Aguila-Reyes, 722 F.2d 155, 158 (5th Cir. 1983) (Rubin, J.,
dissenting) (noting that "dupes who are unaware that they carry
valuable cargo are less likely to steal it"); but the jury has
leeway in considering which inference is more persuasive on given
facts.
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flour or coffee be packaged in such a strange fashion? Here, it is
the circumstances of this case that work against the defendant.
Further, Ayala testified at trial; and "the jury is
permitted to draw an inference of guilt from a deliberate false
alibi." United States v. Llinas, 373 F.3d 26, 37 (1st Cir. 2004)
(concurring opinion). The prosecutor's cross examination gave the
jury a series of reasons to believe that Ayala was lying:
! she had never met Miguel before but
planned to meet him outside the port and
accept a ride to San Juan;
! she did not know Miguel's last name
or phone number, or Ivelisse's phone number;
! she initially claimed to have told
the customs officials that the packages
contained coffee, but later admitted that she
had told them it was flour for baking cakes;
and
! her explanation for her roundabout
route between the Dominican Republic and New
York was attacked as implausible for a variety
of reasons.
The jury might also have been skeptical that anyone would
bother to transport a few kilograms of coffee or flour to Puerto
Rico, especially in light of that island's own famous, historic
coffee industry. See Dooley v. United States, 182 U.S. 222, 236
(1901) ("[Puerto Rico] had no manufactures or markets of its own,
and was dependent upon the markets of other countries for the sale
of her productions of coffee, sugar and tobacco.").
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The jury is entitled to evaluate the witnesses, including
Ayala, and could fairly have concluded that she lacked credibility.
From that determination, especially in combination with the
circumstantial evidence described above, an inference of guilt and
a conviction may follow. Thomas, 467 F.3d at 55 ("Ultimately, it
is [defendant's] own trial testimony that seals her fate on
appeal."); Llinas, 373 F.3d at 37 (concurring opinion).
The same reasoning largely resolves Ayala's sentencing
challenge as well. Under the so-called safety valve provision, 18
U.S.C. § 3553(f), defendants convicted of certain drug crimes who
meet five requirements are to be sentenced "without regard to any
statutory minimum sentence." Id. Ayala might have been a
candidate for this leniency but the court found that she failed the
fifth prong, i.e. the requirement that "the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense."
Id. § 3553(f)(5).2
Ayala did offer to tell the government what she knew, but
indicated that she would simply repeat her trial testimony. Given
that the jury had necessarily disbelieved Ayala's story, there was
some speculation during the sentencing hearing as to whether the
district judge was required to find that Ayala had failed the fifth
2
The other requirements are that the defendant not (i) have
more than one criminal history point; (ii) have engaged in violence
or possessed a gun; (iii) have participated in activity leading to
death or serious injury; or (iv) have been a leader of the criminal
enterprise. 18 U.S.C. § 3553(f)(1)-(4).
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prong of the safety valve statute. Ultimately, the court
explicitly rested on its own, independent finding that Ayala's
story was not true, and we review that factual determination only
for clear error. United States v. Stark, 499 F.3d 72, 80 (1st Cir.
2007).
For the same reasons that the jury could reasonably have
disbelieved Ayala's testimony when assessing her guilt, the
district court could reasonably reach the same conclusion in its
safety valve determination. United States v. Marquez, 280 F.3d 19,
24-25 (1st Cir. 2002). Ayala emphasizes that she cooperated with
the government by agreeing, at the time of the arrest, to
participate in a controlled delivery to Miguel. But the statute
calls for a particular form of cooperation--truthful disclosure--
and the judge permissibly concluded that Ayala had not complied.
Affirmed.
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