United States v. Aragon ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4543
MARTIR VELASQUEZ ARAGON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-97-18)
Submitted: June 23, 1998
Decided: July 28, 1998
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Sandra R. Robinson, Manassas, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, James K. Foster, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
After a bench trial, the district court convicted Martir Velasquez
Aragon on several counts arising from his possession of a large quan-
tity of powder cocaine on an international flight. See 21 U.S.C.
§§ 841(a)(1), 952(a), 955, 960(a)(1) & (a)(2) (1994); see also 49
U.S.C. § 46505(b)(1) (1994). Before trial, Aragon attempted unsuc-
cessfully to suppress the cocaine that was discovered in his luggage,
claiming that the search of his bags violated the Fourth Amendment.
In this appeal, Aragon assigns error to the district court's ruling fol-
lowing the suppression hearing. Additionally, Aragon claims that
there was insufficient evidence to support his convictions related to
the cocaine in his possession and the concealed weapon on his person.
Because we find no merit to Aragon's contentions, we affirm each of
the criminal convictions.
Arriving at Dulles International Airport after a flight from El Sal-
vador, Aragon was subjected to a routine border search. Although
Aragon presented himself at the border as a professional courier, he
did not have the documentation couriers ordinarily use in their busi-
ness. In the course of her routine search, the customs agent emptied
Aragon's suitcase. After observing that Aragon appeared nervous and
that his suitcase had an unusual bottom, the investigating agent
decided to take the bag out of Aragon's sight and drill a small hole
in its bottom. When cocaine poured out of the bag, agents cut it open
and discovered more than 500 grams of cocaine. Aragon was arrested
and instructed to empty his pockets, one of which contained a switch-
blade knife. During questioning, Aragon specifically denied knowing
about the cocaine in the bag before the questioning agent informed
Aragon what type of drugs had been discovered.
Before trial, the district court found that the search was entirely
legal and refused to suppress the cocaine. When he took the stand in
his own defense, Aragon testified that the bag was not his and he did
not know that he had carried cocaine into the United States. Aragon
stated that he was to receive $100 from someone named Flor Marie
for delivering the suitcase. Aragon's attempts to contact Flor Marie
that night were unsuccessful. After considering the evidence, the dis-
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trict court convicted Aragon and sentenced him to 87 months in
prison. Aragon appeals his conviction.
Aragon first assigns error to the district court's refusal to suppress
the cocaine discovered in the suitcase. Aragon claims that the search
was not supported by a reasonable articulable suspicion. For the ini-
tial search of Aragon's possessions, that level of suspicion was not
required. Routine border stops and searches may be conducted with-
out probable cause or reasonable articulable suspicion, in order to reg-
ulate collection of duties and prevent introduction of contraband. See
United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).
Border searches have been considered to be "reasonable" by defini-
tion because the person or item in question came into the United
States from elsewhere. See United States v. Ramsey, 431 U.S. 606,
619 (1977). There is no question but that the customs agent conducted
her initial search of the baggage in full compliance with the Fourth
Amendment.
Following the more pedestrian inspection, the investigating agent
also drilled a hole in the bottom of Aragon's bag. It is at least debat-
able that this action went beyond the boundaries of a routine inspec-
tion. See United States v. Johnson, 991 F.2d 1287, 1293 (7th Cir.
1993) (assuming but not deciding removal of inner shell of suitcase
was non-routine search). The Supreme Court did not define "routine
search" in Montoya de Hernandez. However, only strip searches and
body cavity searches have consistently been considered sufficiently
intrusive to be non-routine. See United States v. Braks, 842 F.2d 509,
512-13 (1st Cir. 1988); see also United States v. Ramos-Saenz, 36
F.3d 59, 61 (9th Cir. 1994). Neither is involved here, but because
some degree of force was used to continue the search, see Braks, 842
F.2d at 512, we will assume for the purposes of this case that this was
something more than a "routine search."
Before the agent could initiate a non-routine search, a reasonable
suspicion was required. See United States v. Oriakhi, 57 F.3d 1290,
1297 (4th Cir. 1995). Aragon exhibited unusual nervousness as he
approached the customs station and during questioning. A person's
nervousness alone may be enough to support a non-routine search.
See United States v. Carreon, 872 F.2d 1436, 1442 (10th Cir. 1989).
In addition, the investigating customs agent noticed during the course
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of the routine search that a flap in the bottom of the bag, which would
ordinarily be rigid, was pliable. Her experience with luggage led her
to expect that the flap would contain a piece of cardboard, but it did
not. Coupled with Aragon's nervousness, the agent had ample evi-
dence on which to form her reasonable suspicion. Even if we assume
that drilling a hole into the bag was a non-routine search, the district
court did not err in concluding that the customs agent had reasonable
suspicion to support the more intrusive search.
Aragon's suggestion that nervousness alone is not sufficient is
premised on United States v. Taylor, 917 F.2d 1402, 1409 (6th Cir.
1990). Not only is Taylor inapposite because it did not concern a bor-
der search, but the customs agent in this case possessed additional
information arousing her suspicion, namely, the odd nature of Ara-
gon's suitcase. In addition, in an attempt to imply that the agent some-
how violated Aragon's Fourth Amendment rights by her failure to
obtain a search warrant, Aragon again relies on cases not applicable
to border searches. See United States v. Place , 462 U.S. 696, 698
(1983); United States v. Ross, 456 U.S. 798, 800 (1982). Applying the
appropriate standard to the customs agent's investigation, Aragon's
Fourth Amendment rights were not offended in any way. The district
court did not err in admitting the evidence.
Aragon next challenges the sufficiency of the evidence used to con-
vict him. Aragon contends that his convictions are"supported solely
by the fact that he merely possessed a large amount of cocaine." In
attacking the sufficiency of the evidence, Aragon primarily impugns
the sufficiency of the Government's investigation regarding the indi-
vidual Aragon attempted to implicate as the owner of the suitcase
containing cocaine. This court will sustain a criminal conviction
where "the evidence, when viewed in the light most favorable to the
government, [is] sufficient for a rational trier of fact to have found the
essential elements of the crime beyond a reasonable doubt." United
States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see also Glasser
v. United States, 315 U.S. 60, 80 (1942). Circumstantial as well as
direct evidence is considered, and the government is given the benefit
of all reasonable inferences from the facts proven to those sought to
be established. See United States v. Tresvant , 677 F.2d 1018, 1021
(4th Cir. 1982). "[A]n appellate court's reversal of a conviction on
grounds of insufficient evidence should be ``confined to cases where
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the prosecution's failure is clear.'" United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984). (quoting Burks v. United States, 437 U.S.
1, 17 (1978)). During this inquiry, this court neither weighs evidence
nor reviews witness credibility. See United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989).
To support Aragon's conviction, the Government was required to
present evidence of possession of cocaine found in the suitcase and
intent to distribute on the part of Aragon. Aragon contends that he
was not aware of the cocaine in the suitcase and was therefore not in
knowing possession of the drugs.* However, the district court could
infer from Aragon's possession of and control over the suitcase--
something he does not deny--that he was aware of its contents. See
United States v. Tylkowski, 9 F.3d 1255, 1260-61 (7th Cir. 1993).
Moreover, Aragon denied that he knew there was cocaine in the bag
before he was informed specifically what drugs the customs agents
discovered in the suitcase. This further suggests his knowledge of the
cocaine in his possession. The district court did not find Aragon's tes-
timony that he was unaware of the presence of the drugs credible.
This court is not is a position to disturb that finding. See Saunders,
886 F.2d at 60.
Aragon suggests that the district court gave too much weight to the
fact that Aragon responded he did not know the cocaine was in the
suitcase before the agents informed him what type of drugs they had
discovered to determine that he had knowledge of the drugs' presence
in the bag. This contention mistakes the lens through which we must
view the evidence. Taken in a light most favorable to the Govern-
ment, Aragon's identification of the drugs as cocaine before the
agents told him it was cocaine they found is evidence of his knowl-
edge of their presence. There was no clear failure of evidence on the
part of the prosecution. Aragon's conviction for possession with
intent to distribute cocaine was supported by evidence sufficient for
a rational trier of fact to find Aragon guilty beyond a reasonable
doubt.
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*Aragon does not challenge the Government's proof regarding his
intent to distribute the cocaine. See United States v. Roberts, 881 F.2d
95, 99 (4th Cir. 1989) (noting intent may be inferred from quantities too
large for personal consumption).
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Finally, although Aragon does not elaborate on this issue in his
brief, we conclude that there was also sufficient evidence to convict
him of possession of a weapon on an aircraft. When Aragon was
searched pursuant to his arrest, he was in possession of a switchblade.
Aragon came directly from the aircraft to the customs area. There is
no evidence of record which would suggest where he might have
obtained the weapon on his way from the aircraft to the customs area.
Again, considering the evidence in a light most favorable to the ver-
dict, there was sufficient evidence to convict Aragon of this crime.
Finding no merit to any of Aragon's contentions on appeal, we
affirm his convictions. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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