UNITED STATES of America, Plaintiff-Appellee, v. Mack Allen RICHARDSON, Defendant-Appellant.
No. 87-1671.
United States Court of Appeals, Fifth Circuit.
June 21, 1988.
848 F.2d 509
I need not repeat what was said in my panel dissent. 820 F.2d at 158. For the reasons stated there I continue to believe that under the authority of Solem the writ should be granted. After Solem no court may “spring a trap on a sick kitten,” to use the majority‘s description of this case, without encountering the Eighth Amendment.
I do wish to join wholeheartedly in what the majority has said in footnote 13 of the opinion. It seems clear from the record that neither judge, in 1976 or 1984, understood the full options of the Louisiana law or the full consequences of the sentences given. I read this court to be saying that a new petition for habeas corpus on that ground will not be stigmatized as an abuse of the writ. Finally, it is clear that, if Terrebonne should be resentenced, his culpability will be at issue and the governing options will be those of the Louisiana law,
ALVIN B. RUBIN, Circuit Judge, with whom JOHNSON, Circuit Judge, joins dissenting:
I join in Judge Reavley‘s dissent. Having, however, written the earlier en banc opinion that upheld Terrebonne‘s sentence,1 I should explain why I have changed my mind. The reason is simple; whether or not Solem v. Helm2 is, as it purports to be, consistent with Rummel v. Estelle,3 Solem clearly broadens the scope of the Eighth Amendment fixed by Rummel.
While Terrebonne had two prior convictions and had a daily heroin habit that he likely could not support without turning to crime regularly,4 he dealt a small quantity of heroin in this case, procured it at the agents’ request with funds supplied by them, did so only to get a fix for himself, made no monetary profit from the transaction, did not seek to “push” the heroin, had no record of violence, and worked at least occasionally.
I agree that the Louisiana sentencing scheme, though inflexible, is constitutional on its face, for the reasons ably stated by my brother Gee. When, however, I apply Solem‘s principles to this sentence, I conclude, as does my brother Reavley, that it is unconstitutional as applied to Terrebonne, for confining him to prison for life without the possibility of parole is “significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.”5
Hal E. Turley, Dallas, Tex., for defendant-appellant.
LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.
Appellant Mack Allen Richardson (Richardson) was charged in a three-count indictment with conspiracy to possess more than 500 grams of cocaine with intent to distribute it, contrary to
The search in question was conducted at the Sierra Blanca checkpoint on January 6, 1987, several months prior to our August 17, 1987 decision in United States v. Jackson, 825 F.2d 853 (5th Cir.1987) (en banc), cert. denied sub nom. Ryan v. United States, — U.S. —, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988), cert. denied sub nom. Browning v. United States, — U.S. —, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988) (Jackson II). As Jackson II makes clear, when the search involved here was performed, our cases treated the Sierra Blanca checkpoint as the functional equivalent of the border. The instant search was plainly proper under those standards. Id. See also, e.g., United States v. Dreyfus-de Campos, 698 F.2d 227 (5th Cir.1983). Richardson contends that we should suppress the fruits of his pre-Jackson II search on the basis of our holding in Jackson II that the Sierra Blanca checkpoint is not the functional equivalent of the border. However, Jackson II specifically rejected that approach, and refused to suppress the
With respect to count three, the Travel Act count, the government, with commendable candor, concedes that the evidence is insufficient under our recent decision in United States v. Hernandez-Palacios, 838 F.2d 1346, 1350 (5th Cir.1988). This concession does not appear to be improvident. We accordingly reverse the conviction and sentence on count three, and order that count dismissed.
The sole remaining issue in the case relates to the sufficiency of the evidence on count two, charging possession of more than 500 grams of cocaine with intent to distribute it. On appellate review, the test for evidential sufficiency is whether “any substantial evidence” supports the finding of guilty and “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.” United States v. Jennings, 726 F.2d 189, 190 (5th Cir.1984). For this purpose, “we must consider the evidence in the light most favorable to the government.” United States v. Niver, 689 F.2d 520, 529 (5th Cir.1982). We must likewise “defer[] to reasonable inferences of fact drawn by the trial court.” United States v. Reeves, 782 F.2d 1323, 1326 (5th Cir.), cert. denied, — U.S. —, 107 S.Ct. 136, 93 L.Ed.2d 79 (1986). “Moreover, whether the evidence is direct or circumstantial, the scope of our review remains the same.” United States v. Lorence, 706 F.2d 512, 518 (5th Cir.1983).
The elements of the
The government‘s evidence showed that on January 6, 1987, at approximately 7:00 p.m., Richardson was traveling alone in a 1986 four-door Oldsmobile, headed in an easterly direction on Interstate Highway 10, when he stopped at the Sierra Blanca checkpoint approximately seventy-five to eighty-five miles southeast of El Paso, Texas. The Border Patrol agent then on duty testified that when Richardson drove up to the checkpoint, the agent identified himself and asked Richardson to state his citizenship, to which Richardson responded that he was American. The agent then asked Richardson where he was coming from, and Richardson responded Los Angeles, California. Although the agent had not asked him about it, Richardson thereupon volunteered that the car was a rental car and was not his, and started to reach for the glove compartment to get the papers out to show the agent it was a rental car. At that point, the agent observed that Richardson was “very uneasy, he wouldn‘t look at me, he wouldn‘t maintain any type of eye contact with me.” Not wanting Richardson to reach in the glove compartment, the agent asked if he would mind opening the trunk. Richardson said he did not have a key to the trunk. The agent requested him to pull into the secondary inspection area, and Richardson did so, the agent accompanying him on foot. The agent then asked him to step out of the car, which Richardson did. Then, as the agent testified, “he repeated himself, telling me that it was a rental car … that it was rented by a friend, that he was driving it for a friend.”
A search of Richardson‘s person and the inside of the vehicle failed to locate a key to the trunk. The agent then removed the back seat and was able to access the trunk, from which he retrieved a package six or seven inches long wrapped in brown masking tape. Making a small cut in this package revealed it to contain what appeared to
The Border Patrol agent then arrested Richardson and called the Drug Enforcement Administration (DEA). Later that evening, Special Agent Hanna, who had fifteen years’ experience with the DEA, interviewed Richardson, after fully warning him of his rights. Hanna testified that Richardson told him that he had flown from Dallas to Los Angeles on the morning of January 5 to visit his ill mother. Richardson told Hanna that about four or five o‘clock in the afternoon on January 5, while in Los Angeles, he “ran into” a female whose first name was Rhonda, whom he had known for four or five years but whose last name he did not recall. He told her he did not have enough money to fly back to Dallas, had no identification on him and no driver‘s license, and “so he asked Rhonda to rent him a car.” He told Hanna that “later that evening someone dropped off a car in front of his mother‘s house and dropped the key to it through the mail slot.” Richardson then got up at two o‘clock in the morning on January 6, got in the car and drove it back toward Dallas, and was eventually stopped at the Sierra Blanca checkpoint. Richardson advised Hanna that he intended to turn the car back in Dallas to Avis Rent-a-Car.
The rental agreement and deposit receipt covering the car Richardson was driving, which were found in its glove compartment, were introduced in evidence. These documents reflect that the car was rented by National Car Rental System in Los Angeles at its Airport Boulevard office “Serving L.A. Int‘l Airport.” The vehicle was rented at 8:09 p.m. on January 5, 1987. The party renting the vehicle was “Cassandra Rodney,” and the rental charge was twenty cents a mile (with a hundred miles a day allowed) and $65 a day. The agreement reflected that the car would be turned in at Love Field, Texas. A cash deposit of $370 was made on the car by Cassandra Rodney. When he was arrested, Richardson had on his person $130 cash and the customer‘s copy of his Dallas to Los Angeles airlines ticket, which reflected a cost of $190.
Agent Hanna also testified that cocaine of the high degree of purity of that found here is usually used for distribution at the wholesale level so it can be further diluted and sold to the consumer. He also testified that the quantity involved “would be quite a few months’ supply” and that “it is certainly not for personal consumption.”1
The defense presented no evidence.
The fact that Richardson had exclusive possession of the car, driving it alone on a trip of over a thousand miles, is some evidence from which it might ordinarily be inferred that he was aware of the some two pounds of cocaine in the wrapped packages sitting in the trunk. We have stated that “[c]onstructive possession is the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance,” United States v. Marx, 635 F.2d 436, 440 (5th Cir.1981) (emphasis added), and that “[c]onstructive possession may be shown by ownership, dominion or control over the contraband itself, or dominion or control over the premises or the vehicle in which the contraband was concealed.” United States v. Salinas-Salinas, 555 F.2d 470, 473 (5th Cir.1977) (emphasis added).2 Read together, these two statements suggest
Here, the circumstances of the trip are clearly suspicious, to say the least. The car is left with Richardson without any announcement whatever except dropping the ignition key through the mail slot. Though Richardson is to take a trip of over one thousand miles, he is not furnished a trunk key for this newly rented car. He does not even know the last name of his benefactor, who is for some inexplicable reason willing to furnish him a car to drive to Dallas that requires a $370 cash deposit and costs her far more than it would to lend him the $60 he would need to buy his return ticket, all without requiring Richardson, who had told her he did not have a driver‘s license or other identification with him, to even sign a receipt or similar document for the vehicle.3 There is also inherent implausibility in Richardson‘s flying to Los Angeles to see his sick mother without enough money to return, and then leaving at two o‘clock the next morning in the mysterious rent car.
Moreover, Richardson‘s nervousness when going through the fixed checkpoint, and his immediate volunteering, without having been asked, that the car was rented and was not his, are likewise suggestive of guilty knowledge. See Moreno, 579 F.2d at 372; Williams-Hendricks, 805 F.2d at 501 (nervous behavior at inspection station). See also United States v. Trevino, 560 F.2d 194 (5th Cir.1977). Cf. Aguila-Reyes, 722 F.2d at 158 (driver‘s lack of concern or surprise after being told that narcotics had been found in vehicle); id. (dissenting opinion, recognizing that “[n]ervousness is frequently used as evidence of guilty knowledge“). Further, Richardson‘s story about the car changed somewhat in the telling. Initially, he informed the Border Patrol agent he was “driving it for a friend” (emphasis added), while later he told DEA Agent Hanna that the friend furnished him the car in response to his request to her for a rent car to drive home since he did not have enough money to buy a return ticket.
Finally, Richardson‘s essentially uncorroborated explanation for his use and possession of the automobile and lack of a trunk key is so inherently implausible as to justify the inference that it was largely fabricated. We have indicated that “a less-than-credible explanation” is “part of the overall circumstantial evidence from which possession and knowledge may be inferred.” United States v. Phillips, 496 F.2d 1395, 1398 n. 6 (5th Cir.1974).4 Cf.
Richardson relies primarily on our opinion in United States v. Tolliver, 780 F.2d 1177 (5th Cir.1986), remanded on other grounds, — U.S. —, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987). There we expressed concern respecting “the paucity of evidence indicating awareness by either Scott or Onick of the contraband‘s presence in a vehicle they did not own and were not shown to have controlled for more than a brief period.” Id. at 1184. The evidence did not show the amount of contraband in the vehicle, and hence we held it insufficient to support the conviction of possession with intent to distribute. Id. We remarked, however, that “[h]ad the government proceeded against Scott and Onick on a simple possession charge, it might have succeeded.” Id. Here, of course, the government did adequately prove the quantity of contraband and the intent to distribute. See note 1, supra, and accompanying text. Moreover, Richardson‘s exclusive possession and control for a lengthy time and over a great distance contrast markedly with the “brief period” of mostly nonexclusive control involved in Tolliver. We conclude that the concern expressed in Tolliver is not applicable to these quite different facts.
In the nature of things, proof that possession of contraband is knowing will usually depend on inference and circumstantial evidence. “Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.” Coggeshall v. United States (THE SLAVERS), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914-15 (1865). The proof here is certainly not “conclusive,” but we deem it, taken as a whole, to constitute substantial evidence and to authorize a reasonable trier of fact to conclude that Richardson‘s guilt was established beyond a reasonable doubt. Moreover, nothing in this record suggests to us that Richardson has been unjustly convicted. Accordingly, the conviction and sentence on count two are affirmed.
Conclusion
The conviction and sentence on count three, charging violation of
AFFIRMED in part and REVERSED in part.
GOLDBERG, Circuit Judge, specially concurring:
The current law in this circuit would not have permitted the border patrol agent‘s unconstitutional search of the rented automobile driven by defendant Richardson. See United States v. Jackson, 825 F.2d 853 (5th Cir.1987) (en banc), cert. denied sub nom. Ryan v. United States, — U.S. —, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988), cert. denied sub nom. Browning v. United States, — U.S. —, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). We cannot, however, suppress the evidence obtained in that unconstitutional search because, at the time of the search, the decisions of this court specifically permitted the now admittedly unconstitutional search. See Jackson, 825 F.2d at 865-66 (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987)).