U.S. v. Gibson ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-8337
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
J0 ANN LACA GIBSON,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( June 5, 1992)
Before POLITZ, Chief Judge, WILLIAMS and DUHE`, Circuit Judges.
POLITZ, Chief Judge:
Convicted of possession with intent to distribute and with
importation of marihuana, 21 U.S.C. §§ 841(a)(1), 952(a), Jo Ann
Laca Gibson appeals, claiming insufficient evidence of guilt and
bad faith destruction of evidence warranting reversal. Finding no
error, we affirm.
Background
United States Border Patrol agents at the El Paso, Texas
border checkpoint apprehended Gibson as she drove an auto into
Texas with 80 pounds of marihuana hidden in a side panel. The
vehicle did not belong to Gibson and she denied knowing that it
contained drugs. Gibson claims that her sister had earlier driven
her and her two young sons to the El Paso side of the Mexico/
United States border and that the three of them walked to Juarez
and then taxied to a mechanic's shop where Gibson's car purportedly
was being repaired. Because the repairs were not yet complete
Gibson said she went to her aunt's house and borrowed the subject
vehicle from her aunt's boyfriend so she could drive home to
El Paso. She insists that she did not know about the hidden
marihuana.
At the border an inspector grew suspicious because Gibson said
she was an American citizen but her auto had a Mexican license
plate. In addition the auto was spattered with bugs, suggesting a
recent drive in the country. The inspector referred Gibson to
secondary inspection where the suspicions of that inspector also
were aroused by the heavy spattering of bugs on an otherwise clean
car. Gibson told the second inspector that the owner was a Juarez
resident; the license, however, was from the Mexican interior.
Further, the car had no mud on the side, as would be expected of a
vehicle driven in Juarez that day. She stated that her own auto
was at a mechanic's shop, but blankly stared when asked what
repairs were being made. Gibson told the first inspector that the
car belonged to her sister's boyfriend; she told the second
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inspector that it belonged to her aunt's boyfriend. She told the
second inspector that a friend had driven her to the border; she
told a customs agent that her sister had done so. Gibson was
unable to answer several routine questions -- the name or address
of the mechanic's shop; her aunt's surname or address; the
boyfriend's name, first or last; and her plans for return of the
borrowed auto to its owner. In addition Gibson had only ten
dollars on her person.
The jury found Gibson guilty of possession with intent to
distribute and of importation of marihuana. She timely appealed.
Analysis
1. Sufficiency of the Evidence
Gibson challenges her conviction, claiming that there was
insufficient evidence that she knowingly possessed the hidden
marihuana. She moved for acquittal at the close of the
government's case and renewed the motion at the close of all the
evidence. In our appellate review we consider the evidence in the
light most favorable to the prosecution, asking whether a rational
trier-of-fact could have found the essential elements proven beyond
a reasonable doubt.1
To sustain the charge of importation, the government need only
prove that the defendant knowingly played a role in transporting
1
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979);
United States v. Gonzalez-Lira, 936 F.2d 184 (5th Cir. 1991).
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contraband from a foreign country into the United States.2 The
elements which the government must prove to convict a defendant of
possession of marihuana with intent to distribute are (1) knowing
(2) possession of marihuana with (3) intent to distribute.3 Gibson
argues that the government produced insufficient evidence of the
knowledge element essential for conviction of either crime.
It is well established in this circuit that in cases involving
hidden compartments, reliance may not be placed solely on the
defendant's control of the vehicle.4 In such an instance,
possession can be inferred only if knowledge is indicated by
additional factors, such as "circumstances evidencing a
consciousness of guilt on the part of the defendant."5
Inconsistent stories may constitute substantive evidence of a
defendant's guilty knowledge.6 Circumstantial factors also include
2
United States v. Diaz-Carreon, 915 F.2d 951 (5th Cir.
1990); United States v. Martinez-Mercado, 888 F.2d 1484 (5th Cir.
1989).
3
United States v. Pierre, 958 F.2d 1304 (5th Cir. 1992)
(en banc).
4
Gonzalez-Lira; Diaz-Carreon; Martinez-Mercado; United
States v. Anchondo-Sandoval, 910 F.2d 1234 (5th Cir. 1990); United
States v. Richardson, 848 F.2d 509 (5th Cir. 1988); United States
v. Olivier-Becerril, 861 F.2d 424 (5th Cir. 1988).
5
Richardson, 848 F.2d at 513.
6
Anchondo-Sandoval ; G o n z a l e z - L i r a ; D i a z - C a r r e o n ;
Martinez-Mercado; United States v. Farias-Farias, 925 F.2d 805 (5th
Cir. 1991).
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lack of knowledge of the name of the true owner and implausible
explanations for one's travels.7
The evidence before us is not insufficient as a matter of law.
The versions of Gibson's border-crossing travels are inconsistent
and the several less than credible gaps in her story support
incredulity. Not only did she profess a lack of knowledge of her
aunt's last name, she did not know the first or last name of the
man who ostensibly had just given her his car to cross the border.
She did not know the address of either the mechanic's shop where
her car was being repaired, or her aunt's house, although only
hours or minutes before she had been at both locations. She did
not know the name of the shop repairing her car. There is an
apparent implausibility in Gibson risking being stranded in Mexico
with her small children without a car and with little cash. How
would she pay for repairs? What if repairs could not be effected?
Such credibility gaps, coupled with the evidence suggesting that
the vehicle had been driven outside Juarez, support the rejection
of her explanation and her protestations of innocence.
2. Bad Faith Destruction of Evidence
Before Gibson's defense counsel had the opportunity to examine
the marihuana it was destroyed by the United States Customs
7
Nervousness, in certain instances, may also be a factor.
The second border inspector in the case at bar testified that
Gibson was not nervous at first, which he found suspicious, but
that she became nervous when the drug dogs arrived, which he also
found suspicious. We assess no value to the presence or absence of
nervousness in this setting.
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Service. Only the lab samples were available. At trial a customs
agent testified about the bulk weight and the authenticity of
photographs of the 30 marihuana bricks removed from the car.
Gibson argues that the district court erred in refusing to
dismiss the indictment based on the government's destruction of the
marihuana. The destruction of evidence alone does not constitute
a due process violation; the defendant must show bad faith on the
part of the government officials.8 We review the district court's
bad faith determination under the clearly erroneous standard. In
the case at bar a customs agent testified that consistent with
agency procedure a letter was sent to the United States Attorney
requesting notification in writing if the controlled substance
should be preserved. Absent a response, controlled substances
routinely are destroyed 60 days after dispatch of such letters. In
this case no response was received and the drugs were destroyed.
We find no error in the trial court's finding that Gibson did not
establish bad faith on the part of the government because of the
destruction of evidence.
AFFIRMED.
8
Arizona v. Youngblood, 488 U.S. 51 (1988); United States
v. Galvan-Garcia, 872 F.2d 638 (5th Cir.), cert. denied, 493 U.S.
857 (1989).
6