United States v. Cardenas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8660
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RITA ANN CARDENAS
and SHAMSIDEEN ABIODUN LAWAL,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
(December 9, 1993)
Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.
KING, Circuit Judge:
Rita Ann Cardenas (Cardenas) and Shamsideen Abiodun Lawal
(Lawal) were convicted in a non-jury trial of conspiracy to
import heroin into the United States from Mexico, in violation of
21 U.S.C. §§ 952(a), 960(a)(1), and 963 (Count One); conspiracy
to possess heroin with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1), 846 (Count Two); importation of heroin, in
violation of 21 U.S.C. §§ 952(a), 960(a)(1) (Count Three); and
possession of heroin with intent to distribute, in violation of
§ 841(a)(1) (Count Four). Cardenas was sentenced to 121 months
imprisonment on each count, to run concurrently, and a five-year
term of supervised release. She was also ordered to pay a
special assessment of $200. Lawal was sentenced to 210 months
imprisonment on each count, to run concurrently, and a five-year
term of supervised release. He was also ordered to pay a special
assessment of $200.
Each defendant appeals his or her conviction and sentence.
We affirm the district court's judgment of conviction and
sentence.
I. BACKGROUND
A. Factual Background
Shortly before noon on August 7, 1992, Quirino Paez-
Guerrero, a taxi driver in Juarez, Mexico, picked up Cardenas and
Lawal in front of the San Carlos Hotel in Juarez to take them
across the border to El Paso, Texas. Following United States
Customs procedures for transporting passengers across the border,
Paez-Guerrero discharged his passengers in front of the
pedestrian border checkpoint before proceeding through the
vehicle checkpoint and waiting for them on the United States side
of the border.
Immigration Inspector Robert Alvarado passed Cardenas
through a pedestrian lane without detention after questioning her
and reviewing her United States passport. Approximately five
minutes later, Lawal attempted to pass through another pedestrian
lane. Senior Customs Inspector Arnulfo Valdez asked Lawal
several routine entrance questions to which Lawal responded with
2
"very evasive" answers. Lawal presented Valdez with his resident
alien card, which showed that he was a Nigerian citizen. When
Valdez then asked Lawal for his passport, airline tickets, and
itinerary, Lawal replied that he had only been in Juarez for a
day and that the requested items were in his hotel room in El
Paso. Throughout Valdez's questioning of Lawal, Lawal appeared
very nervous and "showed symptoms of abnormal behavior."
Valdez then took Lawal to the Customs "Head House," the
customs inspection area, approximately twenty yards from the
pedestrian lanes. In the waiting room, Valdez initiated a
routine patdown search for weapons on Lawal. Immigration
Inspector Lorenzo Ramirez and Supervising Inspector Jose Soledad
were nearby in the doorway. Valdez discovered in Lawal's pockets
an opened box of razor blades, $1044 in cash, part of a roll of
transparent tape, and a key to Room 17 in the San Carlos Motel in
Juarez. He also discovered in Lawal's wallet a photograph of a
woman later identified as Cardenas. When Lawal attempted to grab
the razor blades, inspectors had to subdue him. Inspector Valdez
testified that based on his past experience, the presence of the
razor blades, as instruments commonly used in the cutting of
heroin and cocaine, raised his suspicion that Lawal was involved
in narcotics trafficking.
Valdez then initiated a strip search of Lawal. When Lawal
was removing his shoes, a passport fell out of his right shoe and
onto the floor. Lawal tried to prevent discovery of the passport
by covering it with his foot; he dragged his feet with the
3
passport across the room so that the inspectors had to "kinda
push him" away to recover the passport. The passport was a
United States passport issued to Cardenas, which contained visa
stamps for entry into the Philippines, a country the inspectors
recognized as being "a high source country for narcotics."
Recalling from experience that drug smugglers often travel in
pairs and split up as they go through customs to avoid detection,
Valdez discontinued the search of Lawal to brief Soledad, his
supervisor, of his suspicions--i.e., that Lawal and Cardenas were
partners in a smuggling scheme and that Cardenas had recently
crossed the border and was somewhere nearby. Soledad and
Inspector Frasas then initiated a search for Cardenas.
While the search for Cardenas was proceeding, the inspectors
at the Head House continued their investigation of Lawal. A
drug-sniffing dog alerted to the presence of narcotics on the
cash discovered in Lawal's pocket.
Within approximately five minutes of initiating the search
for Cardenas, Soledad spotted her next to a wall near a store, at
most a block away from the border crossing. Soledad identified
himself, and Cardenas, responding to Soledad's questions,
confirmed that she was Cardenas. Soledad and Frasas then took
Cardenas back to the Head House.
After Cardenas arrived at the Head House, Inspector Edna
Hasan searched Cardenas' purse and found airline tickets and
boarding passes, hotel receipts, Filipino and Dutch currency, and
a United States passport in Cardenas' name. Cardenas appeared
4
unusually nervous throughout this search. When Cardenas then
asked what was wrong, she was informed that she was suspected of
being a narcotics courier. After Cardenas was told that carrying
drugs internally was very dangerous, Cardenas began to cry and
pointed to her waist, stating that she was carrying drugs "here."
Hasan and Inspector Sylvia Page then searched Cardenas and
found five plastic transparent bags containing heroin. These
bags had been held in place around Cardenas' waist by a strong
Lycra girdle and tape, the same kind of tape that Lawal was
carrying. Hasan stated that Cardenas would have required
assistance to put into place and secure the heroin onto her body
as it had been positioned and secured.1 Another bag of heroin
was found in Cardenas' left sock.
The gross weight of the heroin found on Cardenas' person was
5.5 pounds. Customs Special Agent Ricky Hearn testified that the
heroin was of 87 percent purity and that heroin of this amount
and purity was "distribution" heroin, not "user" heroin--which is
of less than 10 percent purity. Hearn also stated that the
wholesale value of the heroin was more than "half a million
dollars" and that once the heroin was cut up and had its purity
percentage lowered, its value would significantly increase.
1
Hasan assisted Cardenas in both taking the girdle and
plastic bags off and securing everything back into place in order
to take pictures. The largest bag of heroin was secured under
the girdle on Cardenas' back.
5
Cardenas was informed of her Miranda2 rights and then signed
a form indicating that she understood her rights and that she
wished to waive them and make a statement. Cardenas told the
inspectors that she and Lawal were involved in a scheme to import
narcotics into the United States. She stated that a woman named
"Lucy" from Houston offered her $15,000 to pick up some narcotics
in the Philippines and bring them into the United States. She
said that after she had gone to the Philippines and received a
quantity of drugs there from an unknown man, she traveled to
Amsterdam, in the Netherlands, and then to Mexico City, where she
first met Lawal in the airport. She also explained that the
picture of herself found in Lawal's wallet was a picture she had
given to "Lucy" so that "Lucy" could give it--for identification
purposes--to the person who was to meet Cardenas at the Mexico
City airport. Together, she said, she and Lawal went to the San
Carlos Hotel in Juarez, where she stayed while Lawal went out to
"buy some stuff." She stated that he returned to the room with a
girdle, razor blades, tape, and plastic baggies. She explained
that after Lawal had packaged the drugs into the baggies and
secured the heroin in Cardenas' girdle, they exited the hotel,
got into a taxi, and proceeded to the border crossing to enter
into the United States. She also stated that more drugs were in
the hotel room in Juarez.
After being informed of his Miranda rights, Lawal told
inspectors that he had found Cardenas' passport on the ground
2
Miranda v. Arizona, 384 U.S. 479 (1966)
6
near the border crossing. He stated that he was carrying it
inside of his shoe to avoid being found with someone else's
passport and that he intended to turn it in to authorities. He
first explained that he was traveling alone, but he stated later
that his wife and infant son were waiting for him at the Holiday
Inn Hotel in downtown El Paso. Furthermore, he initially denied
ever seeing Cardenas, but later admitted riding in the taxi with
her from the hotel to the border crossing. He also denied
knowledge of either the presence of Cardenas' picture in his
wallet or the heroin confiscated from Cardenas' person.
B. Procedural History
On August 19, 1992, Lawal and Cardenas were indicted for
conspiracy to import heroin into the United States from Mexico,
in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963 (Count
One); conspiracy to possess heroin with the intent to distribute,
in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count Two);
importation of heroin, in violation of 21 U.S.C. §§ 952(a),
960(a)(1) (Count Three); and possession of heroin with the intent
to distribute, in violation of 21 U.S.C. § 841(a)(1). Each
defendant pleaded not guilty to all of the charges.
Cardenas then moved to suppress her confession and the drugs
seized from her person on the ground that they were obtained as a
result of an unlawful search and seizure. Lawal also moved to
suppress any evidence obtained from the search of his person or
the hotel room in Juarez and to suppress statements he made after
he was taken into custody on the same grounds. At a suppression
7
hearing which began on October 19, 1992, the district court
denied Cardenas' motion to suppress, reasoning that the search
and seizure of Cardenas had been conducted pursuant to the
extended border search doctrine as enunciated in United States v.
Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988). The court also
denied Lawal's motion to suppress. Neither Cardenas nor Lawal
testified at the suppression hearing.
After the defendants waived their right to a jury trial, the
district court held a bench trial on October 22, 1992, which
commenced at the conclusion of the suppression hearing. Neither
defendant testified at trial, and the court admitted the evidence
from the suppression hearing, including Cardenas' admission which
she had sought to suppress. Lawal objected to the inclusion of
testimony relating to Cardenas' admission on the grounds that it
violated his Sixth Amendment right to confront and cross-examine
Cardenas and that it was inadmissible hearsay. The district
court overruled his objection.
Cardenas and Lawal were convicted of the offenses charged
and sentenced to 121 months and 210 months imprisonment,
respectively, on each count to run concurrently. Each defendant
was also sentenced to a five-year term of supervised release and
ordered to pay a special assessment of $200. Each defendant now
appeals his conviction and sentence.
II. DEFENDANT CARDENAS
A. Standard of Review
8
Cardenas contends that the district court erred in
dismissing her motion to suppress evidence obtained as a result
of her search and seizure, which she alleges were made without
probable cause and hence in violation of the Fourth Amendment.
In reviewing a district court's denial of a motion to suppress,
we review factfindings under the clearly erroneous standard.
United States v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert.
denied, 113 S. Ct. 388 (1992); United States v. Lopez, 911 F.2d
1006, 1008 (5th Cir. 1990). The district court's conclusions of
law are reviewed de novo. United States v. Richardson, 943 F.2d
547, 549 (5th Cir. 1990). Furthermore, in reviewing a ruling on
a motion to suppress, we view the evidence in the light most
favorable to the party who prevailed in the district court.
United States v. Piaget, 915 F.2d 138, 140 (5th Cir. 1991);
United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989). We
view not only the evidence taken at the suppression hearing, but
also the evidence taken at trial. United States v. Rideau, 969
F.2d 1572, 1576 (5th Cir. 1992) (en banc).
B. Cardenas' Argument on Appeal
Cardenas contends that the district court erred in denying
her motion to suppress based on the court's erroneous conclusion
that her search and seizure were constitutionally permissible
under the extended border search doctrine. She argues
specifically that the extended border search doctrine is
inapplicable in her case because the doctrine applies only to
searches of vehicles, not to searches of pedestrians, that have
9
crossed the international border. She also argues that if the
doctrine does apply, its requirements have not been met because
several of the district court's critical factual findings
concerning her search and seizure are not supported by the
record.
We first review the rationale on which the extended border
search doctrine is grounded and the requirements which must be
met before a search can qualify as an extended border search. We
then address each of Cardenas' contentions in turn.
1. The Extended Border Search Doctrine
The Fourth Amendment to the United States Constitution
provides in pertinent part that
[t]he right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause . . . .
The Supreme Court has determined that warrantless searches and
seizures are per se unreasonable unless they fall within a few
narrowly defined exceptions. Coolidge v. New Hampshire, 403 U.S.
443, 454-55 (1977). One important exception is the border search
doctrine. Under this doctrine, a governmental officer at the
international border may conduct routine stops and searches
without a warrant or probable cause because the United States as
a sovereign state has the right to control what persons or
property crosses its international borders. See United States v.
Ramsey, 431 U.S. 606, 616 (1977); United States v. Berisha, 925
F.2d 791, 793-94 (5th Cir. 1991); see also United States v.
10
Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("[T]he Fourth
Amendment's balance of reasonableness is qualitatively different
at the international border than in the interior.").
The border search doctrine is also applicable to stops and
searches conducted at the "functional equivalent" of the border,
i.e., the first point at which an entrant may practically be
detained. Almeida-Sanchez v. United States, 413 U.S. 266, 272
(1973). For example, the "functional equivalent" of the border
has been found to be the airport where an international flight
lands, see, e.g., United States v. Klein, 592 F.2d 909, 911 n.1
(5th Cir. 1979), or the port where a ship docks after arriving
from a foreign country, see, e.g., United States v. Prince, 491
F.2d 655, 659 (5th Cir. 1974). A search at the "functional
equivalent" of the border is justified under the border search
doctrine because
"it is in essence no different than a search conducted
at the border; the reason for allowing such a search to
take place other than at the actual physical border is
the practical impossibility of requiring the subject
searched to stop at the physical border."
United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982)
(quoting United States v. Garcia, 672 F.2d 1349, 1363-64 (11th
Cir. 1982)). Thus, a routine search made at the border or its
functional equivalent may be made without probable cause or any
suspicion to justify the search. United States v. Sandler, 644
F.2d 1163, 1167-69 (5th Cir. 1981) (en banc).3
3
Although the Supreme Court has never determined what makes
a border search "routine," lower courts have generally classified
routine searches as those which do not seriously invade a
11
Further, the border search doctrine has been extended to
allow government officials to conduct a warrantless search and
seizure beyond the border or its functional equivalent on the
"reasonable suspicion" of criminal activity. See Espinoza-
Seanez, 862 F.2d at 531; United States v. Melendez-Gonzalez, 727
F.2d 407, 410-11 (5th Cir. 1984). "The main difference between
the functional equivalent of the border search and an extended
border search is that the latter takes place after the first
point in time when the entity might have been stopped within the
country." Niver, 689 F.2d at 526.
An extended border search, however, entails a greater
intrusion on an entrant's legitimate expectations of privacy than
does a search conducted at the border or its functional
equivalent. See id. Accordingly, this court has determined that
three factors must be demonstrated before an extended border
traveler's privacy. See, e.g., United States v. Jackson, 825
F.2d 853, 857 (5th Cir. 1987) (search of vehicle), cert. denied,
484 U.S. 1011, and cert. denied, 484 U.S. 1019 (1988); United
States v. Fortna, 796 F.2d 724, 738 (5th Cir.) (en banc) (search
of luggage), cert. denied, 479 U.S. 950 (1986); see also United
States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993) (search of
border entrant's outer clothing, personal effects, purse, and
wallet). However, a stop and search that is not considered
"routine" requires at least "reasonable suspicion" of wrongdoing
to pass constitutional muster. See United States v. Montoya de
Hernandez, 473 U.S. 531, 538 (1985) (detention at the border,
beyond the scope of a routine customs inspection, is justified
if--after having considered all of the facts surrounding the
traveler and his itinerary--the inspectors reasonably suspect
that the traveler is smuggling contraband). This "reasonable
suspicion" standard has been applied to non-routine searches such
as x-ray examinations, see Montoya, 473 U.S. at 541 n.4, and
strip searches, see United States v. Adekunle, 980 F.2d 985, 987-
88 (5th Cir. 1992), cert. denied, 113 S. Ct. 2380, and cert.
denied, 113 S. Ct. 2455, vacated in part on reh'g on other
grounds, 2 F.3d 559 (5th Cir. 1993).
12
search is deemed reasonable and hence constitutionally
permissible: (1) a showing of a "reasonable certainty" or a
"high degree of probability" that a border crossing has occurred;
(2) a showing of a "reasonable certainty" that no change in the
condition of the person or vehicle being inspected occurred from
the time of the border crossing until the search and that the
contraband found was present when the person or vehicle crossed
the border; and (3) a showing of a "reasonable suspicion" that
criminal activity was occurring. See Espinoza-Seanez, 862 F.2d
at 531. This court has also determined that "reasonable
certainty" is "a standard which requires more than probable
cause, but less than proof beyond a reasonable doubt." Id.;
United States v. Delgado, 810 F.2d 480, 484 (5th Cir. 1987);
Niver, 689 F.2d at 526. Further, in determining whether there is
a "reasonable suspicion" that criminal activity was occurring,
each case "must turn on the totality of the particular
circumstances." Espinoza-Seanez, 862 F.2d at 531.
2. Applicability of the Extended Border Search Doctrine
a. Vehicles or Persons
Cardenas first contends that the district court erred in
applying the extended border search doctrine in her case. She
argues that the justification for relaxing the warrant
requirement under the extended border search doctrine is the
mobility, speed, and capability for smuggling associated with
vehicles. She thus concludes that the border search doctrine was
13
formulated to apply only to vehicles, not pedestrians, crossing
the border. We disagree.
Although reported cases concerning the extended border
search doctrine involve the search of a vehicle, the doctrine was
not formulated to apply only to vehicles that have crossed the
border. The major impetus behind the extended border search
doctrine is "the government interest in stopping drug traffic."
WILLIAM E. RINGEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS § 15.3, at
15-20 (Supp. 1993); cf. United States v. Kenney, 601 F.2d 211,
212-13 & n.1 (5th Cir. 1979) (noting that subject to the
requirements of the Fourth Amendment, 19 U.S.C. § 482 authorizes
customs inspectors to stop and search at the border any vehicle
or person suspected of bringing contraband into the country). We
explained the basic rationale for an extended border search in
United States v. Richards, 638 F.2d 765, (5th Cir.), cert.
denied, 454 U.S. 1097 (1981):
While the mere fact that a person or thing has once
crossed the border does not sanction a search of it
forever after, we have also recognized that the need to
protect personality and property against warrantless
invasion must be balanced against the myriad
difficulties facing customs and immigration officials
who are charged with the enforcement of smuggling and
immigration laws. We have, therefore, recognized in
the doctrine of "extended border search," the
government's power, under certain circumstances, to
search without a warrant persons and things after they
have entered the country.
Id. at 771 (emphasis added); see also United States v. Flynn, 664
F.2d 1296, 1306 n.17 (5th Cir.) (explaining that an extended
border search "enables government officials to search persons or
goods at some point after they have crossed the border where
14
there is a reasonable suspicion of secreted contraband that can
be shown to have been present at the time the border was
crossed") (emphasis added), cert. denied, 456 U.S. 930 (1982);
United States v. Sheikh, 654 F.2d 1057, 1070 n.16 (5th Cir.
1981), cert. denied, 455 U.S. 991 (1982) (same). Thus, because
both vehicles and persons crossing the border may harbor
contraband, it follows that the extended border search doctrine
should permit the search of not only vehicles but also persons--
the caveat being, however, that the requirements enunciated in
Espinoza-Seanez must be met so that an entrant's legitimate
expectations of privacy are not unconstitutionally intruded
upon.4 To view the extended border search doctrine in the
limited manner which Cardenas prescribes would be to frustrate
the purpose of the extended border search doctrine--as well as
the border search doctrine itself on which the extended doctrine
is based--so as to limit illogically the right of a sovereign
state to control what persons or property crosses its
international borders. We therefore find Cardenas' argument to
be without merit.
b. The Requirements of Espinoza-Seanez
Cardenas contends generally that the district court based
its determination that the Espinoza-Seanez factors had been
4
We note that an extended border search can properly be
conceived as much like a search at the border or at the
functional equivalent of the border because the entrant or the
vehicle to be searched "'brings the border with it' to the point
of the search." United States v. Johnson, 588 F.2d 147, 154 n.11
(5th Cir. 1979).
15
demonstrated on clearly erroneous factfindings, i.e., that the
taxi driver gave a description of Cardenas' clothing to Inspector
Soledad before Soledad set out to look for Cardenas, that
Cardenas volunteered to walk with Soledad to the Head House, and
that Cardenas told Soledad that she had just crossed the border.
We find no support in the record for these particular findings.
However, we consider the other findings made by the district
court, which are supported by record evidence, in reviewing the
district court's conclusion that the Espinoza-Seanez factors have
been demonstrated.
(i). Reasonable certainty of a border crossing
Cardenas first contends that the government failed to show
by a "reasonable certainty" or a "high degree of probability"
that she had just crossed the border. She argues that she was
not viewed with suspicion as she crossed the border, that she was
not kept under surveillance after she crossed, and that nothing
about her appearance or her being located within a block of the
border when found supports a high degree of probability that she
had just entered the United States. She thus concludes that the
first Espinoza-Seanez requirement was not satisfied and that her
search and seizure cannot be qualified as having been made under
the extended border search doctrine. Again, we disagree.
Despite Cardenas' argument otherwise, continuous
surveillance is not a requirement of an extended border search.
Niver, 689 F.2d at 527; United States v. Ingham, 502 F.2d 1287,
1291 (5th Cir. 1974), cert. denied, 421 U.S. 911 (1975); see also
16
United States v. Driscoll, 632 F.2d 737, 739 (9th Cir. 1980).5
Furthermore, although the "reasonable certainty" standard, which
governs our inquiry into whether a border crossing has occurred,
requires more than probable cause, it does not require knowledge
beyond a reasonable doubt. Espinoza-Seanez, 862 F.2d at 531.
The "reasonable certainty" standard requires that
"the totality of facts and circumstances within the
[government] officers' knowledge of which they have
reasonably trustworthy information be sufficient in the
light of their experience to warrant a firm belief that
a border crossing has occurred."
United States v. Corral-Villavicencio, 753 F.2d 785, 788 (9th
Cir. 1985) (quoting United States v. Tilton, 534 F.2d 1363, 1366-
67 (9th Cir. 1976)). Moreover, that a border crossing has
occurred may be inferred from circumstantial evidence. See
Delgado, 810 F.2d at 484 n.2 (explaining that government
officials need not actually observe a border crossing in order
for their search to be considered reasonable). For example, in
United States v. Barbin, 743 F.2d 256, 261 (5th Cir. 1984), this
court concluded that it was "reasonably certain" that a sailboat
and trailer had crossed the United States border from Mexico
because (1) an informant had reported to customs inspectors that
the boat and trailer were approaching the border on the Mexican
5
We have, however, indicated that constant surveillance is
one way in which the government can demonstrate that there had
been no change in the condition of person or vehicle being
searched between the time of the border crossing and the time of
the search itself and that the contraband was present at the
border crossing. United States v. Niver, 689 F.2d 520, 527 (5th
Cir. 1982); United States v. Richards, 638 F.2d 765 (5th Cir.),
cert. denied, 454 U.S. 1097 (1981); see also United States v.
Alfonso, 759 F.2d 728, 735 (9th Cir. 1985).
17
side of the Rio Grande River; (2) the boat and trailer were later
sighted within 25 miles of the border on the United States side;
(3) the boat and trailer were found with sand and river mud on
them; and (4) trailer tracks, which matched the trailer, were
found at the border river crossing.
Additionally, in United States v. Delgado, we upheld the
district court's determination that the search of a truck
qualified as an extended border search because there was a
"reasonable certainty" that the contraband found in the truck had
crossed the border. 810 F.2d at 484. In Delgado, James
Marchant, a customs investigator, received information that a
drug smuggling operation was using a specific crossing on a farm
on the Rio Grande River to smuggle marijuana into the United
States from Mexico. Id. at 481. Marchant was informed that a
convoy of vehicles had left Juarez, Mexico, headed downriver on
the Mexican highway to the crossing at the farm and that before 9
p.m. the marijuana was to be offloaded from one of the vehicles--
a large truck capable of carrying tonnage--and smuggled across
the border into the United States. Id. at 482. Relying on the
past credibility of his informant, Marchant established
surveillance at the farm with another customs official, both of
whom were positioned so that traffic not coming from the border
area had to pass one of the two inspectors. Id.When Marchant saw a truck driving away from the border on
the road out of the farm at 7:30 p.m., Marchant concluded that it
had come from the border area because it had not passed either
18
him or his partner. Id. Marchant then followed the truck on the
highway, and when a car passed him to travel with the truck, he
concluded--from his experience--that the car was a "heat
vehicle," traveling in tandem with the truck to ensure that the
truck reached its destination. Id. This court upheld Marchant's
subsequent stop and search of the truck under the extended border
search doctrine, concluding that there was sufficient evidence to
show beyond a "reasonable certainty" that the contraband had
crossed the border. Id. at 484.
Evidence in the instant case is also circumstantial.
Testimony indicates that Cardenas' co-defendant Lawal appeared
nervous and was very evasive in answering routine questions posed
to him by Inspector Valdez as he attempted to cross the border,
that a patdown search of Lawal rendered razor blades (for which
Lawal attempted to fight), a roll of transparent tape, and a
picture of Cardenas, and that a strip search of Lawal brought
forth a United States passport issued to Cardenas that contained
visa stamps for the Philippines, which Lawal attempted to hide.
Specifically, Valdez testified that based on his past experience,
the presence of the razor blades, as instruments commonly used in
the cutting of heroin and cocaine, raised his suspicion that
Lawal was involved in narcotics trafficking. He further
testified that because his experience had shown that drug
smugglers often travel in pairs and split up as they go through
customs to avoid detection, he discontinued the search of Lawal
to brief Inspector Soledad, his supervisor, of his suspicions--
19
i.e., that Lawal and Cardenas were partners in a smuggling scheme
and that Cardenas had recently crossed the border and was
somewhere nearby. He also attested that Cardenas' passport with
visa stamps from the Philippines, which was recognized by
inspectors as a "high source country for narcotics," made him
very suspicious of her involvement in a smuggling scheme.
Moreover, Soledad testified that Cardenas was found not more than
a block away from the border crossing, standing next to a wall
near a store, within minutes of his proceeding to look for her.
The evidence provided by the searches of Lawal, Valdez's
familiarity with the modus operandi of drug smugglers in crossing
the border in pairs, Valdez's briefing of Inspector Soledad on
his suspicions about Cardenas and Lawal, the location at which
Cardenas was found, and the short time frame during which the
inspectors discovered Cardenas' picture and passport with Lawal
and then found Cardenas herself near the border indicate a "high
degree of probability" or a "reasonable certainty" that Cardenas
had crossed the border. Thus, the district court did not err in
concluding that the government had sufficiently demonstrated the
first factor enunciated in Espinoza-Seanez.
(ii). Reasonable certainty of unchanged condition
Cardenas also argues that the district court erroneously
concluded that the government had established the second
Espinoza-Seanez factor, i.e., a reasonable certainty that there
had been no change in Cardenas' condition from the time of the
border crossing until the time of the search and that the heroin
20
found on Cardenas' person had been present when she crossed the
border. She asserts that Inspector Alvarado, who allowed her to
pass through the pedestrian lane without inspection, did not
notice her looking "bulky around the waist" and that no one
testified whether she looked the same when she crossed the border
as when she was confronted in El Paso. We are, however,
unpersuaded by Cardenas' argument.
Testimony supports the district court's finding that between
fifteen and thirty-five minutes elapsed between the time
Inspector Alvarado passed Cardenas through the pedestrian lane
and the time Inspector Soledad encountered her in El Paso--not
more than a block from the border. Furthermore, the district
court found Inspector Hasan's testimony to be convincing. Hasan
testified not only to the difficulty of removing the girdle from
Cardenas' body but also to the difficulty of placing the girdle
around Cardenas' waist with the bulky, plastic packages
underneath. Hasan also testified that it would have been
difficult for Cardenas to put on the girdle and the plastic
packages quickly and extremely difficult for her to have done so
with no help. Specifically, Hasan testified that Cardenas
required assistance to position one of the packages of heroin
underneath the girdle she was wearing as it was positioned, i.e.,
on her back.
Cardenas argues, however, that it is ludicrous to believe
that she could not have put on the girdle in a restroom or
dressing room in one of the nearby El Paso shops. She also
21
asserts that because Hasan testified that it took approximately
five minutes to help Cardenas put the girdle on, Cardenas had
plenty of time to do so during the fifteen to thirty-five minutes
when she was unobserved in downtown El Paso.
We again emphasize that continuous surveillance is not a
requirement of an extended border search. Niver, 689 F.2d at
739; Driscoll, 632 F.2d at 739; Ingham, 502 F.2d at 1291. This
court has also upheld border searches in which defendants have
remained unobserved for periods of thirty minutes, United States
v. Ramos, 645 F.2d 318, 321 (5th Cir. 1981), and fifty-five
minutes, United States v. Walters, 591 F.2d 1195, 1198 (5th
Cir.), cert. denied, 442 U.S. 945 (1979). Although the searches
conducted in Ramos and Walters were each deemed a functional
equivalent of the border search, and not an extended border
search as the district court decided in the instant case, our
discussion in those cases aids our analysis of Cardenas'
situation.
In Walters, for example, fifty-five minutes had elapsed
between the time the defendant passed through the airport customs
enclosure to the time a customs agent requested that she return
to the customs enclosure. 591 F.2d at 1198. During that fifty-
five minute period, the defendant testified that she had gone
upstairs to the end of the airport terminal building, into a
drugstore where she bought a soda and looked at magazines, and
returned to the airport lobby. Id. We took into account the
defendant's limited activities during the fifty-five minute
22
period, that her clothing was unchanged when she returned to
customs, and that cocaine had been taped to her body under heavy
clothes and a girdle to determine that a reasonable fact finder
could conclude that the cocaine was in the same position on the
defendant's person as it had been when the defendant entered the
country. Id.
In Ramos, we reviewed the district court's determination
that the government demonstrated with "reasonable certainty" that
the contraband found on the defendant had recently crossed the
border. The defendant had been approached by customs officials
within thirty minutes of leaving the airport customs enclosure.
645 F.2d at 320-21. The defendant testified that during that
thirty-minute period he had checked into the airport hotel which
was part of the terminal complex. Id. at 321. However, there
was no indication that the defendant had gone to his room because
he had not changed clothes since his departure from the customs
enclosure and was carrying the same briefcase. Id. A patdown
search of the defendant eventually revealed a package of cocaine
taped to the defendant's leg and covered by an ace bandage. Id.
at 320. In agreeing with the district court that it was
"reasonably certain" that the cocaine found on the defendant had
crossed the border, we explained:
The government is not required to negate every
hypothetical possibility as to how the contraband may
have been obtained subsequent to the border crossing.
In this case, the mere assertion by the defendant that
there was the opportunity to obtain the contraband
after the border crossing is insufficient to controvert
the facts established by the government. Although
opportunity is, of course, one factor, and might be the
23
controlling factor if the contraband were found loose
in a pocket or purse, the court finds that it is highly
unlikely that cocaine obtained after a long
international flight, late at night almost
contemporaneously with registration in a hotel, would
be carried in the manner of the cocaine found in this
case.
Id. at 321 (emphasis added).
In light of our discussion in Walters and Ramos, and after
reviewing the evidence in the instant case on which the district
court made its factual findings, we cannot say that the district
court erred in determining that the government demonstrated a
reasonable certainty that Cardenas, and thus the heroin secured
to her person, had not changed in condition between the time she
crossed the border and the time she was found in El Paso. We
therefore find Cardenas' contention to be without merit.
(iii). Reasonable suspicion of criminal activity
Finally, Cardenas contends that the inspectors who found her
in El Paso had at best a generalized suspicion that she was
involved in criminal activity but no "particularized suspicion."
She asserts that the inspectors who encountered her in El Paso
noticed nothing suspicious about her when they approached and
that the inspectors who suspected Lawal of drug trafficking could
not transfer that suspicion to Cardenas simply because Lawal
possessed Cardenas' passport. She thus concluded that the
district court erred in determining that the third factor
enunciated in Espinoza-Seanez, a reasonable suspicion that
criminal activity is occurring, had been demonstrated. Again, we
disagree.
24
"Reasonable suspicion" of criminal activity must be based on
specific facts which, taken together with rational inferences
therefrom, reasonably warrant an intrusion. See United States v.
Lopez-Gonzalez, 916 F.2d 1011, 1013 & n.3 (5th Cir. 1990) (citing
Terry v. Ohio, 392 U.S. 1 (1968), and explaining that factors
relevant to the reasonable suspicion inquiry for a Terry stop
might also be relevant to the reasonable suspicion inquiry in an
extended border search, particularly for those stops in which the
transportation of contraband is suspected); United States v.
Miranda-Perez, 764 F.2d 285, 288 (noting that the "reasonable
suspicion standard reaches to stops for the purpose of
investigating not only suspected smuggling of contraband or
transportation of illegal aliens but also, in a broader sense,
for investigating suspected criminal activity"). We have also
made it clear that "reasonable suspicion" of criminal activity is
not limited to any particular set of factors. Espinoza-Seanez,
862 F.2d at 531. Instead, "'each case must turn on the totality
of the particular circumstances.'" Id. (quoting Melenez-
Gonzalez, 727 F.2d at 410-11).
Testimony supports the district court's finding that Lawal
was concealing Cardenas' passport, a passport marked with visa
stamps from the Philippines, which Inspector Valdez recognized as
a "high source country" for narcotics. We have found such
evidence to be supportive of a government official's "reasonable
suspicion" of the person to whom the passport had been issued.
See United States v. Adekunle, 980 F.2d 985, 988 (5th Cir. 1992)
25
(evidence that a person carried a passport from Nigeria, a known
narcotics source country, supported the custom agent's reasonable
suspicion), cert. denied, 113 S. Ct. 2380, and cert. denied, 113
S. Ct. 2455, vacated in part on reh'g on other grounds, 2 F.3d
559 (5th Cir. 1993). Testimony further supports the finding that
Lawal tried to hide Cardenas' passport from the inspectors and
that Lawal was also carrying a photograph of Cardenas in his
wallet. The district court also found that the inspectors
possessed an "abundance of information" supporting a reasonable
suspicion of criminal activity, i.e., evidence obtained from the
search of Lawal--especially the razor blades which Lawal
struggled to keep from the inspectors--and Inspector Valdez's
testimony that his experience indicated that drug smugglers often
traveled in pairs and crossed the border separately but at
approximately the same time. When viewed as a whole, the
evidence supports the district court's determination that Lawal
and Cardenas were each reasonably suspected of criminal activity.
We thus cannot say that the district court erred in determining
that the third factor enunciated in Espinoza-Seanez, a reasonable
suspicion of criminal activity on Cardenas' part, had been
demonstrated.
3. Conclusion
The district court correctly concluded that the search and
seizure of Cardenas was made pursuant to the extended border
search doctrine. As such, Cardenas' search and seizure were not
unreasonable, and her Fourth Amendment rights were not violated.
26
The district court thus did not err in denying Cardenas' motion
to suppress.
III. DEFENDANT LAWAL
Lawal contends that the district court erred in admitting
into evidence at trial Cardenas' statements implicating Lawal in
an elaborate scheme to smuggle heroin into the United States
because Cardenas did not testify at either the suppression
hearing or the trial. He argues that because this evidence was
erroneously admitted, his Sixth Amendment right of confrontation
and cross-examination was violated under Bruton v. United States,
391 U.S. 123 (1968). Additionally, Lawal contends that Cardenas'
statements were hearsay and not competent evidence bearing on the
issue of his guilt or innocence. Lawal further maintains that
the district court erred in denying his motion for a judgment of
acquittal as to all charges because the government did not
present sufficient evidence of his guilt. We review each of
Lawal's contentions in turn.
A. Lawal's Bruton Claim
The Sixth Amendment provides a defendant with the right "to
be confronted with the witnesses against him." The Supreme Court
in Bruton held that this constitutional right to confrontation
and cross-examination is violated when (1) co-defendants are
tried jointly, (2) one defendant's extrajudicial confession and
statement are admitted into evidence and used to inculpate a co-
defendant, and (3) the confessing defendant does not testify and
27
is thus not subject to cross-examination. Id. Thus, when co-
defendants are tried jointly, a pre-trial confession from one
cannot be admitted against another co-defendant--even if the jury
is instructed to consider the confession only against the
confessing defendant--unless the confessing defendant testifies
at trial. Id. Later decisions of the Court limited Bruton's
applicability to situations in which the confessing defendant's
confession expressly implicates a co-defendant. Richardson v.
Marsh, 481 U.S. 200, 211 (1987); see Cruz v. New York, 481 U.S.
186, 193-94 (1987); United States v. Restrepo, 994 F.2d 173, 186
(5th Cir. 1993); United States v. Kelly, 973 F.2d 1145, 1150 (5th
Cir. 1992); Espinoza-Seanez, 862 F.2d at 534.
The Bruton Court based its reasoning on the fact that
despite limiting instructions to the contrary, the jury could not
be relied upon to disregard completely the confessing defendant's
statement when considering the guilt or innocence of the
inculpated defendant. Id. at 136. As the Court explained,
there are some contexts in which the risk that the jury
will not, or cannot follow instructions is so great,
and the consequences of failure so vital to the
defendant, that the practical and human limitations of
the jury system cannot be ignored. Such a context is
presented here, where the powerfully incriminating
extrajudicial statements of a co-defendant, who stands
accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial.
Not only are the incriminations devastating to the
defendant but their credibility is inevitably suspect,
a fact recognized when accomplices do take the stand
and the jury is instructed to weigh their testimony
carefully given the recognized motivation to shift
blame onto others. The unreliability of such evidence
is intolerably compounded when the alleged accomplice
. . . does not testify and cannot be tested by cross
examination.
28
Id. at 135-36.
The application of Bruton to a bench trial, however, is
questionable. Nothing in Bruton, or in later Supreme Court cases
discussing Bruton, suggests that in a bench trial a judge is
incapable of disregarding inadmissible extrajudicial statements
implicating a defendant. Moreover, this court has always
presumed the contrary: "a trial judge is presumed to rest his
verdict on admissible evidence and to disregard the
inadmissible." Government of the Canal Zone v. Jimenez G., 580
F.2d 897, 898 (5th Cir. 1978) (quoting United States v. Impson,
562 F.2d 970, 971 (5th Cir. 1977)), cert. denied, 439 U.S. 990(1979); United States v. Masri, 547 F.2d 932, 936 (5th Cir.),
cert. denied, 431 U.S. 932, and cert. denied, 434 U.S. 907(1977); United States v. Dillon, 436 F.2d 1093, 1095 (5th Cir.
1971).
Other circuits that have addressed the applicability of
Bruton to a bench trial have determined that Bruton does not
apply. See, e.g., Rogers v. McMackin, 884 F.2d 252, 255-57 (6th
Cir. 1989), cert. denied, 493 U.S. 1061 (1990); United States ex
rel. Faulisi v. Pinkney, 611 F.2d 176, 178 (7th Cir. 1979);
United States v. Castro, 413 F.2d 891, 894-95 & n.7 (1st Cir.
1969), cert. denied, 397 U.S. 950 (1970); Cockrell v. Oberhauser,
413 F.2d 256, 258 (9th Cir. 1969); see also 21 CHARLES A. WRIGHT &
KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 5064,
at 321 (1977) ("The Bruton rule does not, of course, apply in
nonjury trials."). In making its decision, the Sixth Circuit
29
considered whether the Supreme Court's decision in Lee v.
Illinois, 476 U.S. 530 (1986), made Bruton applicable to non-jury
trials. Rogers, 884 F.2d at 257. We agree with the Sixth
Circuit's assessment that Lee did not make Bruton applicable to
bench trials.
In Lee, Millie Lee and Edwin Thomas were charged with
committing a double murder and were jointly tried in a non-jury
trial. 476 U.S. at 536. Thomas, at the time of his arrest, made
a confession to police which expressly implicated Lee and which
suggested that the two of them had discussed murdering one of the
victims immediately prior to the actual murder. Id. at 532.
Although Lee also confessed, her confession suggested that Thomas
had "snapped" the night of the murders and gave no indication of
any type of plan or premeditation. Id. at 535-36. Thomas'
confession was admitted into evidence at trial and heavily relied
upon by both the prosecution and the defendants. Id. at 536.
Neither of the defendants testified at the trial. Id. In
finding Lee guilty, the judge expressly relied on portions of
Thomas' pre-trial confession as substantive evidence against Lee.
Id. at 538. The Supreme Court held that such reliance violated
Lee's Sixth Amendment right to confrontation. Id. at 547.6
The issue specifically addressed in Lee was whether the
trial judge's reliance upon Thomas' pre-trial confession, not the
6
We note that the Lee Court did not foreclose the
possibility, however, that such a reliance was harmless "when
assessed in the context of the entire case against Lee." Lee,
476 U.S. at 547.
30
admission of such a confession, violated Lee's Sixth Amendment
right to confrontation. Id. at 531. Moreover, the Court
observed that Lee was "not strictly speaking a Bruton case." Id.
at 542. Bruton, the Court explained, was based "on the fact that
a confession that incriminates an accomplice is so . . .
'devastating' that the ordinarily sound assumption that a jury
will be able to follow faithfully its [limiting] instructions
could not be applied." Id. (emphasis added).
We therefore agree with the Sixth Circuit that automatically
"[t]o apply Bruton to bench trials would be to conclude that
judges, like jurors, may well be incapable of separating evidence
properly admitted against one defendant from evidence admitted
against another." Rogers, 884 F.2d at 257. Furthermore, absent
an express reliance by a trial judge on a non-testifying
defendant's pre-trial confession--which facially implicates a co-
defendant--in determining that co-defendant's guilt, we do not
see how a Sixth Amendment confrontation issue can arise in a
bench trial. No such express reliance exists in the instant
case.
In light of the Supreme Court's rationale in Bruton and Lee
and this circuit's case law which recognizes the presumption that
a judge in a bench trial has no difficulty in disregarding
inadmissible evidence in reaching his verdict, we thus agree with
our sister circuits who have determined that Bruton is
31
inapplicable to bench trials.7 Lawal's reliance on Bruton is
therefore misplaced.
B. Cardenas' Admission as Hearsay
Lawal also contends that the district court erred in
admitting Cardenas' admission, which implicated Lawal in an
elaborate scheme to smuggle heroin into the United States,
because her admission was inadmissible hearsay as to Lawal and
not competent evidence bearing on the issue of Lawal's guilt or
innocence. He thus argues that his conviction should be set
aside because the admissible evidence was not sufficient to
establish his guilt.
1. Standard of Review
The prejudicial impact of erroneously admitted evidence in a
bench trial is presumed to be substantially less than it might
have been in a jury trial. United States v. Hughes, 542 F.2d
246, 248 (5th Cir. 1976); United States v. Nicholson, 492 F.2d
124, 124 (5th Cir. 1974). Moreover, "'a judge, sitting as a
trier of fact, is presumed to have rested his verdict only on the
admissible evidence before him and to have disregarded that which
is inadmissible.'" Jiminez G., 580 F.2d at 898 (quoting Impson,
562 F.2d at 971); Hughes, 542 F.2d at 248; Dillon, 436 F.2d at
1095. Any error the judge makes in admitting evidence is thus
7
We also point out that at least two commentators have
cited the Supreme Court's decision in Lee for the proposition
that Bruton is inapplicable to bench trials. See 21 CHARLES A.
WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE
§ 5064, at 173 n.33 (West Supp. 1993).
32
harmless if there exists other admissible evidence sufficient to
support the conviction. Jiminez G., 580 F.2d at 898.
Our standard of review in reviewing the ultimate finding of
guilt by the district court is a substantial evidence test.
United States v. Puente, 982 F.2d 156, 158-59 (5th Cir.), cert.
denied, 113 S. Ct. 2934 (1993); United States v. Rosas-Fuentes,
970 F.2d 1379, 1381 (5th Cir. 1992); United States v. Jennings,
726 F.2d 189, 190 (5th Cir. 1984). Thus, this court should
sustain Lawal's conviction if the district judge's finding is
supported by any substantial evidence. United States v.
Richardson, 848 F.2d 509, 511 (5th Cir. 1988); Jennings, 726 F.2d
at 190. As we explained in Jennings,
[w]here a jury has been waived and bench trial held, on
appellate review of the ultimate finding of guilt the
usual rule is that it must stand if it is supported by
substantial evidence. [Thus,] in reviewing the
findings of guilt by a trial court in a non-jury trial,
the standard of review of the appellate court "is to
determine whether such findings are supported by any
substantial evidence. It is not our function to make
credibility choices or to pass upon the weight of the
evidence. The test is whether the evidence is
sufficient to justify the trial judge, as trier of the
facts, in concluding beyond a reasonable doubt that the
defendant was guilty . . . ."
726 F.2d at 190 (quoting Gordon v. United States, 438 F.2d 858,
868 n.30 (5th Cir.), cert. denied, 404 U.S. 828 (1971)) (internal
citations and quotations omitted).
In applying this substantial evidence test, we must consider
the evidence in the light most favorable to the government.
Rosas-Fuentes, 970 F.2d at 1381; Richardson, 848 F.2d at 511.
"We must likewise 'defer to reasonable inferences of fact drawn
33
by the trial court.'" Richardson, 848 F.2d at 511 (quoting
United States v. Reeves, 782 F.2d 1323, 1326 (5th Cir.), cert.
denied, 479 U.S. 837 (1986)); see Rosas-Fuentes, 970 F.2d at
1381; United States v. Pitts, 428 F.2d 534, 537 (5th Cir.), cert.
denied, 400 U.S. 910 (1970). Furthermore, our review remains the
same whether the evidence is direct or circumstantial.
Richardson, 848 F.2d at 511; United States v. Lorence, 706 F.2d
512, 518 (5th Cir. 1983).
2. Evidence Supporting Lawal's Conviction
Lawal was convicted on two counts of drug conspiracy, one
count of drug possession, and one count of drug importation. See
supra Part I.B. We need not decide whether the district judge
erroneously admitted Cardenas' hearsay statements, for our review
of the remaining admissible evidence shows that substantial
evidence exists to support the district judge's ultimate finding
of guilt on these charges. We address each of the charges in
turn.
a. Conspiracy
To prove the drug conspiracy charges against Lawal, the
government must prove beyond a reasonable doubt (1) that a
conspiracy existed, i.e., that two or more persons agreed to
violate the narcotics laws; (2) that Lawal knew of the
conspiracy; and (3) that Lawal voluntarily participated in the
conspiracy. United States v. Rodriguez-Mireles, 896 F.2d 890,
892 (5th Cir. 1990); United States v. Natel, 812 F.2d 937, 940
(5th Cir. 1987). Direct evidence is not required; each element
34
may be inferred from circumstantial evidence. Espinoza-Seanez,
862 F.2d at 537.
An agreement to violate narcotics laws may be inferred from
"concert of action." Id.; see Natel, 812 F.2d at 940; United
States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982). Knowledge of
the conspiracy may be inferred from "'a collection of
circumstances.'" Espinoza-Seanez, 862 F.2d at 537; Vergara, 687
F.2d at 61. Evasive and erratic behavior is some evidence of
guilty knowledge. See Richardson, 848 F.2d at 513; United States
v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir. 1986).
Voluntary participation in the conspiracy may also be inferred
from a "collection of circumstances." Espinoza-Seanez, 862 F.2d
at 537; Vergara, 687 F.2d at 61; United States v. Marx, 635 F.2d
436, 439 (5th Cir. 1981). Although mere presence at the scene of
the crime or a close association with a co-conspirator alone
cannot establish voluntary participation in a conspiracy, United
States v. Moreno, 649 F.2d 309, 312 (5th Cir. 1981), presence or
association is a factor that, along with other evidence, may be
relied upon to find conspiratorial activity by the defendant,
Natel, 812 F.2d at 941; see United States v. Magee, 821 F.2d 234,
239 (5th Cir. 1987).
Evidence shows that Lawal and Cardenas left together from
the Hotel San Carlos in Juarez, Mexico. They travelled by taxi
together, instructing the taxi driver to take them across the
border to El Paso. Lawal and Cardenas split up to cross the
border into the United States, with Lawal waiting approximately
35
five minutes after Cardenas had passed through a pedestrian lane
at the border crossing before he attempted to pass through a
different pedestrian lane. Lawal was nervous and evasive in his
responses to routine questioning from Inspector Valdez in the
pedestrian lane. He manifested unusual behavior when questioned
about the reasons for his trip to Mexico.
Although he told Inspector Valdez that he had only been
visiting Juarez and that he was staying at the Holiday Inn Hotel
in El Paso, a key to Room 17 in the Hotel San Carlos in Juarez
was found in his possession. Later, Mexican Judicial Police
found four pounds of heroin in Room 17, which was registered in
Lawal's name.8 A small role of transparent tape, $1044 in United
States currency, a photograph of Cardenas in Lawal's wallet, and
razor blades were also found in Lawal's possession. Lawal tried
forcefully to prevent inspectors from taking the razor blades,
and a drug dog later alerted to the currency found in Lawal's
possession.
Additionally, Cardenas' United States passport, which
contained visa stamps from the Philippines, was hidden in Lawal's
right shoe. Lawal attempted to hide that passport after it was
found. Cardenas was spotted minutes after inspectors had
discovered her passport with Lawal. She was not more than a
block from the border crossing, standing next to a wall. Later,
8
We note that neither probable cause nor a search warrant
was required to search Room 17. The Fourth Amendment does not
apply to searches or seizures conducted on foreign soil, even if
the search involves agents of the United States government.
United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990).
36
5.5 pounds of heroin--worth approximately $500,000 wholesale--was
found secreted on Cardenas' person by means of a girdle and tape,
the same type of tape found in Lawal's pocket.
After being informed of his Miranda rights, Lawal stated
that he found Cardenas' passport on the ground near the border
crossing, carried it inside his shoe to avoid being detected with
another's passport, and intended to turn it in to the proper
authorities. He initially reported that he was traveling alone,
but later stated that his wife and infant son were waiting for
him in El Paso. He also initially denied that he had ever seen
Cardenas, but later admitted riding in the taxi with her from the
Hotel San Carlos to the border crossing. Furthermore, Lawal
denied knowledge of either the presence of Cardenas' picture in
his wallet or the heroin confiscated from Cardenas' person.
Reviewing this evidence, albeit circumstantial, in the light
most favorable to the government and likewise deferring to
reasonable inferences of fact drawn by the district judge, we
find the evidence sufficient to prove all of the elements in the
conspiracy charge as discussed above. Substantial evidence
exists to support an inference of agreement, knowledge, and
voluntary participation on Lawal's part to convict him of
conspiracy.
b. Possession with intent to distribute
To prove the possession with intent to distribute charges
against Lawal, the government must prove knowing possession of
the contraband with intent to distribute. Rosas-Fuentes, 970
37
F.2d at 1382; Williams-Hendricks, 805 F.2d at 500. The elements
of the offense may be proven by circumstantial evidence alone.
Rosas-Fuentes, 970 F.2d at 1382; United States v. Molinar-
Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989).
Possession may be actual or constructive and may be joint
among several defendants. Molinar-Apodaca, 889 F.2d at 1423;
Vergara, 687 F.2d at 61. This court has defined "constructive
possession" as "the knowing exercise of, or the knowing power or
right to exercise dominion and control over the proscribed
substance." Molinar-Apodaca, 889 F.2d at 1423; United States v.
Glasgow, 658 F.2d 1036, 1043 (5th Cir. 1981). Intent to
distribute "may be inferred from the presence of distribution
paraphernalia, large quantities of cash, or the value and quality
of the substance." United States v. Munoz, 957 F.2d 171, 174
(5th Cir.), cert. denied, 113 S. Ct. 332 (1992).
Evidence shows that Lawal had in his possession--when he
attempted to cross the border--razor blades, tape of the same
type that was used to secure the heroin to Cardenas' person,
Cardenas' picture and passport, and a large amount of cash to
which a drug dog alerted. Inspector Hasan testified not only to
the difficulty of Cardenas alone securing the girdle and drugs on
Cardenas' person as they had been secured, but also to the
difficulty of removing the girdle and drugs without help. The
taxi driver testified that he had taken Lawal and Cardenas
together to the border crossing. Having reviewed this evidence,
along with other evidence presented, see Part III.B.2.a supra, in
38
the light most favorable to the government, we conclude that the
district court did not err in determining that Lawal had
constructive possession of the heroin found on Cardenas' person
and the intent to distribute that heroin. Substantial evidence
exists to support Lawal's conviction for possession with intent
to distribute.
c. Importation
To prove the importation charge against Lawal, the
government was required to prove the elements of the possession
charge and that Lawal "played a role in bringing the [heroin]
from [Mexico] into the United States." United States v.
Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir. 1988);
Williams-Hendricks, 805 F.2d at 500. Again, we find substantial
evidence to support that Lawal did indeed play a role in bringing
heroin from Mexico into the United States. See Part III.B.2.a
supra.
d. Conclusion
We therefore determine that any error made by the district
judge in admitting Cardenas' hearsay statements was not harmful
because there exists other sufficient admissible evidence to
support Lawal's conviction for the crimes with which he was
charged.
C. Denial of Motion for a Judgment of Acquittal
Finally, Lawal contends that the district court erred in
denying his motion for a judgment of acquittal because the
39
government did not present sufficient evidence to support Lawal's
conviction. We disagree.
We first note that the government argues that because Lawal
failed to renew his motion for acquittal at the close of all of
his evidence, Lawal has waived his sufficiency review on appeal.
Citing this court's decision in United States v. Ruiz, 860 F.2d
615, 617 (5th Cir. 1988), the government contends that we should
review the sufficiency of evidence for Lawal's convictions under
the "manifest miscarriage of justice" standard. We must point
out, however, that the "manifest miscarriage of justice" standard
applies only when the defendant fails to move for acquittal at
the close of all the evidence in a jury trial. Rosas-Fuentes,
970 F.2d at 1381. Because Lawal waived his right to trial by
jury and elected a bench trial, his plea of not guilty serves as
a motion for acquittal and thus error has been preserved. Id.;
Pitts, 428 F.2d at 535.
Furthermore, because Lawal waived his right to a jury trial
and a bench trial was held, we review his sufficiency of the
evidence claim according to the substantial evidence test, as
discussed in Part III.B.1 supra. In light of our discussion
concerning the sufficiency of the evidence to support Lawal's
convictions in Part III.B.2 supra, we find that Lawal's argument
concerning the district court's denial of his motion for a
judgment of acquittal to be without merit.
IV. CONCLUSION
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For the foregoing reasons, we AFFIRM the district court's
judgment of conviction and sentence as to each of Cardenas and
Lawal.
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