USCA1 Opinion

March 9, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1147
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN CARLOS VELEZ-POSADA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Enrique Velez-Rodriguez for appellant.

_______________________
Juan Carlos Velez-Posada on brief pro se.
________________________
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with w
________________________
Daniel F. Lopez-Romo, United States Attorney, and Hernan Rios, J
_____________________
______________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________

COFFIN,
judgments
States,

Senior Circuit Judge.

______________________

of conviction
21 U.S.C.

for importing

952(a), and

controlled substance on board

for

Defendant

appeals

from

cocaine into

the United

possessing a

non-listed

an aircraft, 21 U.S.C.

955.

In

addition to having read appellate counsel's brief and listened to

oral argument,

we also have

filed by appellant
attention to all

himself.
claims, is

read supplemental and

Our conclusion,
that we must

below.
A. Sufficiency

reply briefs

after giving

affirm the

due

judgments

We

address first

whether

support

the verdicts.

Appellant testified to a series of events

beginning

with

meetings

at

the evidence

his

father's

was sufficient

bar

Colombia, with two men who said that appellant

and who

wanted his

passport number and

flight to the

island of

photographs; continuing

San Andres; the

heavy suitcases supposedly containing clothes,

ticket (purchased

Medellin,

owed them a favor

with a rendezvous at a street corner; a taxi ride

and a

in

to

to the airport
receipt of

two

as well as an air

by one person and reconfirmed

by another) for

travel from Nicaragua to Panama and then to Madrid, and $2,000 in

cash; and subsequent travel to Panama for a three-day stay during

which appellant called home a number of
his

whereabouts, fearing threatened

truth were told.

times but did not reveal

harm to

his family

if the

He also expressed his apprehension that unnamed

persons were plotting to cut out one of his body organs.

Appellant was apprehended when his plane landed in San Juan.

He

had

manifested

suspicions were

nervousness

aroused by the

and

the

fact that his

customs

officials'

passport revealed

exits from

a country less identified

than Colombia.

The

with narcotics trafficking

two suitcases, bearing the claim

numbers on

his ticket, emitted a chemical odor; when samples of the suitcase

material

were tested,

Appellant, a

they

revealed the

22-year-old student,

presence of

whose earnings

cocaine.

in connection

with his father's bar approached $13 a month, was found with cash
and records of expenditure totalling over $4,000.
The most important

guide to note is

that the jury was

obligated to believe appellant's testimony.It

part or all of it.

It also could conclude that

young man going without

whom he had

in Madrid, possessed

disbelieve

the picture of a

information as to what he

met, precisely where he was to go

see upon arrival

could

not

was carrying,

or whom he was to

of two excessively

heavy

suitcases, smelling of chemicals though purportedly carrying only

clothes

and a substantial amount

of cash, was

As we said in a similar case involving an air

from Colombia to
cannot say that
or

that

such a

conclusion."

an unlikely one.

passenger en route

Madrid with cocaine-impregnated

suitcases, "We

a reasonable juror could not reason in this way;

___
juror must
____

have a

reasonable doubt

United States v. Mahecha-Onofre, 936

_____________
______________

(1st Cir. 1991) (emphasis in original).

-3-

about the

F.2d 623, 624

B. Expert Testimony
Appellant also

challenges the

chemist, who had been

about

the tests

suitcases.
misleading

testimony of a

qualified as an expert, and

he

had made

on

who testified

material extracted

from

the

The grounds for challenge are that the testimony was

and confusing

as

to

the

presence

controlled substance, and that the testing

witness was not trustworthy.
in chemistry from the
years

U.S. Customs

of graduate

activity while

on the job.

had spent

five years

done three

in training

He had performed hundreds of tests a

been qualified as an expert in

He

that

he had

of

The witness possessed a B.S. degree

University of Puerto Rico, had

work, and

amount

technique used by the

year, and had

testified

and

had

experience

occasions with drug-impregnated luggage

a number of cases.
on

only two

but had through

prior

reading

known how to conduct accurate testing.

At

the

defendant's

end
trial

of

cross examination

counsel

Whereupon the court allowed

of

said,

in extrapolating

"That's

to

qualifications,

all,

examination to proceed.

cross examination directed at

used

as

the testing and

the percentage

of cocaine

your

Honor."

At

the end

at the method
found in

the

samples to determine the amount present in the suitcases, counsel

simply

stated

that she

had no

more

questions.

No objection

having

been

made

witness, the
burden

at any

time

to

the

qualifications of

the

method or the results of testing, appellant's heavy

is to demonstrate plain error to the extent that manifest

injustice will result if

the judgment is allowed to

stand.

The

-4-

record

does

successfully.

not
It

allow

appellant

makes

clear that

concealing cocaine by impregnating

may be
of

novel, the technique of

the drug in the

total

amount

of

cocaine

contraband

samples were
base, such

chromatography tests,
determining the
suitcases
suggestion

was

carry

although

in

the

two

suitcases

The specific half dozen

that the method was novel.

was

and

the presence

of

gas

The method of

contained in
at

not

tests to

spectrophotometric and

cocaine base

carefully

length,

the two
with

no

Moreover, for purposes of

sentencing, the court used an amount less than

extrapolated by the witness.

of

to ascertain the

have been widely accepted.

explained

method

sampling, determining percentage

ultraviolet

quantity of

burden

suitcase liners with the drug

subjected to determine

as

this
the

samples, and extrapolating

particularly novel or exotic.

which the

to

one third of that

In his pro
cases, such as

se reply brief, appellant has cited

a number of

Turpin v. Merrell Dow Pharmaceuticals, Inc., 959

______
__________________________________

F.2d 1349, 1352 (6th Cir. 1992) (involving the proof of causation
of

Bendectin

birth

defects),

studies, literature, and

bring

to

bear

testimony.

"close

where the

state

opinion is in such
judicial analysis"

of

scientific

turmoil that courts

of

proposed

expert

There is nothing in this record to place this case in

the company of those at the cutting edge of scientific inquiry.

C. Other Issues
Appellant was allowed to
raising

additional issues.

file supplemental and reply briefs

None

of these was

preserved in the

-5-

trial

court.

Our consideration of them is therefore limited; we

review only to

prevent a

United States v. Newman,

______________
______

serious miscarriage of
No. 91-2303, slip op.

justice.

See
___

at 15 (1st Cir.

Dec. 31, 1992).

1.

The

fact

that

the

contraband (10.9 kilograms of

indictment

charged an

amount

cocaine) greatly in excess of

of

the

amount proven
reversal.
that a

(1,547 grams of cocaine

base) is not

a basis for

The discrepancy between charge and proof did not mean

different or an additional offense

petit jury

operated under

had been proven.

proper instructions for

The

weighing the

evidence and in fact acquitted on Count I (charging possession of

a

large enough

showing

that

amount
it

to indicate

was not

misled

an

intent to

into

thinking

distribute),
that over

10

kilograms of cocaine were involved.

2. The

same observation disposes of

appellant's contention

that Count III could not stand without Count I.

3. The fact
"knowingly and
statutes

that the indictment charged that

willfully"

contained no

committed the

the defendant

offenses, whereas

such requirements,

could only

the

help, not

hurt, defendant.
4. Appellant's
(21

U.S.C.

same

crime

jeopardy

concern over

952(a)) and Count III

and thus

violate

been

specifically

has

unjustified in

the

the possibility that

(21 U.S.C.

955) charge the

proscription against
addressed

by

us

United States v. Franchi-Forlando,

_____________
________________

589-591 (1st Cir. 1988).

5.

Appellant
-6-

Count II

claims

and

double

found

838 F.2d 585,

that

the

court

should have

given an

instruction

actions were attributable to

on the

duress.

possibility that

There having been

his

no such

request, we would need a much more persuasive record to fault the

judge for not including an instruction on his own initiative.

6. Appellant asserts error in sentencing by arguing that the

controlled substance

involved was not cocaine

base but cocaine,

or at least that there is uncertainty over this point.

But it is

clear that the chemist identified it as cocaine base, without any

objection by
contrary.

defense counsel,
Indeed,

questioning

the

regarding

and without

chemist was
the

any evidence

subjected to

distinctions

to the

considerable

between

cocaine

and

cocaine base.

7. Appellant also argues for a downward departure because of

duress, and for an additional downward departure because of
his

asserted minimal

role

as a

mere

"mule."

As

an initial

matter, we note that we lack appellate jurisdiction to consider a

request

for downward

Amparo, 961
______

F.2d 288,

equally unavailing
assume an amount

departure.
292 (1st

on the

See,
___

Cir. 1992).

merits.

(500 grams)

e.g., United States v.

____ ______________

What the

well below what

This argument
court did

is

was to

the chemist

felt

certain was proven (1,547 grams); this established a base offense

level of 36.

The court then

granted a two-point reduction

for

minor participation and another two-point reduction for accepting

responsibility.
which, for a

This

produced

defendant with

a total

offense

a Criminal History

level of

32,

Category of

I,

called for

a sentence within

the range of

121 and 155

months.

-7-

The court imposed a sentence of 121 months. It

noted

mandatory minimum sentence was 10 years, or 120 months.

is the
minimal

support for further

downward departures

role nonexistent, therefore,

but the

that

the

Not only

for duress

and

mandatory minimum

floor is an impassable barrier to any further meaningful relief.

The judgments

of conviction are not

of either court or counsel, but must be

AFFIRMED.

attributable to errors

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