FRANCISCO RODRIGO GARCIA, PETITIONER V. UNITED STATES OF AMERICA No. 90-5612 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. B1-B7) is reported at 905 F.2d 557. The magistrate's report and recommendation concerning petitioner's motion to suppress evidence (Pet. App. A1-A6) is not reported. JURISDICTION The judgment of the court of appeals was entered on June 19, 1990. The petition for a writ of certiorari was filed on August 31, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was subject to prosecution under the federal narcotics laws for offenses arising out of his possession of cocaine while travelling on an airplane flight that made a stop in Puerto Rico while en route from Colombia to Spain. 2. Whether searches conducted by customs inspectors who discovered cocaine in petitioner's luggage violated petitioner's rights under the Fourth Amendment. STATEMENT After a jury trial in the United States District Court for the District of Puerto Rico, petitioner was convicted of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1); importing cocaine into the Customs territory of the United States from a place outside it, in violation of 21 U.S.C. 952(a); and possessing cocaine on an aircraft arriving in the United States, in violation of 21 U.S.C. 955. Petitioner was sentenced to concurrent 160-month prison terms on each count, to be followed by five-years' supervised release. The court of appeals affirmed. 1. On December 13, 1988, an Iberia Airlines flight bound for Spain from Colombia made a stop at the Luis Munoz Marin Airport in Puerto Rico. In an in-transit lounge at that airport, federal customs inspectors screening passengers for evidence of illegal drugs stopped petitioner and asked to see his passport, boarding pass and airline ticket. Although appellant's ticket indicated that he had checked four pieces of luggage, appellant had only one claim sub and maintained he was carrying only one suitcase. When customs agents inspected in-transit luggage on the tarmac, they found a music amplifier marked with a tag corresponding to appellant's claim ticket. After smelling glue (a substance commonly used to confuse drug-sniffing dogs), an inspector probed the amplifier and found cocaine hidden inside. Customs inspectors also found cocaine in a second amplifier bearing a claim ticket with a number consecutive to the first one. Pet. App. B2-B3; Gov't C.A. Br. 2-6. After discovering the cocaine, the customs inspectors arrested petitioner and advised him of his rights. Among other things, petitioner told the inspectors that he believed there were at least 21 kilograms of cocaine inside the two amplifiers; ultimately, the amplifiers were determined to contain 20.78 kilograms of cocaine. Pet. App. B3. Before trial, petitoner moved to suppress the evidence discovered during the search of his luggage and statements that he made to customs inspectors. After a hearing, the motions were denied. See Pet. App. A1-A6. The evidence and statements were subsequently introduced at trial. 2. The court of appeals affirmed. Pet. App. B1-B7. The court rejected petitioner's contention that there had been insufficient justification for the search of his luggage, explaining that it is "well settled that such in-transit searches are considered border searches" and that the Customs Service "has the authority routinely to search, without a warrant or suspicion, baggage and persons in-transit from one foreign country to another." Pet. App. B4. The court added that "the fact that (petitioner) did not know the plane would stop in the United States is immaterial." Ibid. /1/ ARGUMENT 1. Petitioner contends that in-transit international passengers who stop in this country are immune from prosecution under federal drug statutes, asserting that they lack specific intent to commit drug offenses in this country. Pet. 5-6. Every federal court of appeals that has considered the issue has held that federal narcotics laws are fully applicable to individuals who carry drugs into the United States while smuggling them from one foreign country to another. /2/ These decisions are well-founded. None of the statutes under which petitioner was prosecuted is limited to individuals who intend to distribute drugs in this country. With respect to the offense of posssession of cocaine with intent to distribute it, "(t)he actual possession on United States territory supplies the jurisdictional nexus and obviates the need for proof of intent to distribute within the United States." United States v. Muench, 694 F.2d 28, 33 (2d Cir. 1982), cert. denied, 461 U.S. 908 (1983). Similarly, even if Spain was to have been the ultimate destination of petitioner's cocaine, he knowingly possessed it while he was aboard an airplane that arrived in the United States and thus imported the cocaine into this country. No more was required for a conviction under 21 U.S.C. 952(a) and 955. See United States v. Mejia-Lozano, 829 F.2d 268, 271 (1st Cir. 1987); United States v. Franchi-Forlando, 838 F.2d 585, 587 (1st Cir. 1988). There is no merit to petitioner's suggestion (Pet. 5-6) that international drug traffickers are immune from prosecution under federal drug statutes unless it can be shown that they were aware that an international flight would take them to the United States. Nothing in the language of the statute requires that type of specific intent. As the First Circuit held, in upholding the conviction of a defendant who claimed to have been unaware that her flight would make a stop in this country, "21 U.S.C. Section 952(a) does not require the sort of specific intent that (the defendant) assumes. It is sufficient that the defendant knowingly possessed the contraband, and brought it into the jurisdiction of the United States." United States v. Mejia-Lozano, 829 F.2d at 271. This reasoning is supported by decisions of this Court under analogous federal statutes. In United States v. Feola, 420 U.S. 671 (1975), the Court held a defendant was properly convicted of assaulting and conspiring to assault a federal officer (an undercover DEA agent), even though the defendant was unaware at the time of the offenses that his victim was a federal officer. Noting that an individual who assaults someone "know from the very outset that his planned course of conduct is wrongful," the Court concluded that the "concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum." Id. at 685. Similarly, in United States v. Yermian, 468 U.S. 63, 68 (1984), the Court rejected the contention that 18 U.S.C. 1001 requires proof that a defendant was aware that a false statement involved a matter within a federal agency's jurisdiction. /3/ So too here, the government proved that petitioner knowingly possessed the drugs that he brought into this country and intended to distribute them; it was not necessary to show in addition that he also knew these actions would subject him to prosecution in this country. Recognition of the specific intent requirement that petitioner advocates would violate the purpose of federal drug statutes. Although those statutes were intended to combat the distribution of drugs within this country, that is not their exclusive purpose. As the Second Circuit explained in United States v. Muench, 694 F.2d at 32: (T)he United States has by treaty obligated itself to cooperate with other nations in the suppression of the international drug trade. * * * The Congress has expressly declared that the drug laws are in part intended to meet the United States' duties under those treaties. See 21 U.S.C. 801(7), 801a. * * * It would be absurd to ignore Congress' expressed intent and hold that international drug dealers who make stopovers in the United States are exempt from the U.S. drug laws as long as they do not attempt to go through U.S. Customs. Nor do we believe that Congress intended the public to bear the risk of violence that is created by any transportation of illicit drugs, * * * or that Congress was unaware of the possibility that drugs possessed within the United States but outside its customs boundaries might eventually be distributed within the country. 2. Petitioner also contends (Pet. 6-10) that the search of his luggage by customs inspectors violated his rights under the Fourth Amendment. In his view, the court of appeals erred in assessing the legality of the search under standards governing border searches. "(T)he Fourth Amendment's balance of reasonableness is qualitatively different at the international border than at the interior." United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). In light of "longstanding concern for the protection of the integrity of the border," a concern that "if anything, (has been) heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics," federal authorities are allowed to conduct routine searches of persons and their effects at our Nation's borders without probable cause, a warrant, or reasonable suspicion. Ibid. The Fourth Amendment's reasonableness standard -- which governs non-routine searches -- is also responsive to the fact that a search occurs at the border. "(N)ot only is the expectation of privacy less at the border than in the interior, * * * the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck more favorably to the Government at the border." Id. at 539-540. In a number of cases, the First Circuit has held that the Customs Service's authority to search baggage arriving in the United States extends to in-transit international passengers. See, e.g., United States v. Levy, 870 F.2d 37 (1989); United States v. Mateos Sanchez, 864 F.2d 232 (1988); United States v. Papeleo, 853 F.2d 16 (1988); United States v. McKenzie, 818 F.2d 115 (1987). To our knowledge, no other court of appeals has recognized a distinction, for purposes of the Fourth Amendment, between travellers who seek to enter the country and those who are en route to a foreign destination. The considerations underlying the Fourth Amendment standards governing border searches are applicable to in-transit international passengers. Individuals involved in international drug smuggling or other criminal activity that brings them temporarily within our borders threaten important national interests and thus trigger the heightened federal interest in "the integrity of the border." United States v. Montoya de Hernandez, 473 U.S. at 538. In-transit passengers, aware that they will be called upon to pass international borders on one or more occasions during their trips, also have a diminished expectation of privacy. Thus, searches of in-transit passengers should not be limited to cases in which authorities have probable cause and obtain a warrant, and the Fourth Amendment's reasonableness standard should be applied with due regard to the unique concerns governing searches at a national border. There can be no serious contention that the searches at issue in this case were unreasonable -- given their border setting and the facts known to customs inspectors. In Montoya de Hernandez, this Court held that a person seeking to enter this country could be detained for 16 hours on the basis of a reasonable suspicion that she was carrying drugs in her alimentary canal. The searches in this case were far less intrusive, and were justified by accumulating evidence that petitioner was carrying contraband. A routine inspection of petitioner's ticket, boarding pass, and baggage claim stubs revealed that petitioner did not have three claim stubs corresponding to baggage reflected on his ticket. Asked to provide an explanation, petitioner claimed to be carrying only one suitcase. A surface examination of the article corresponding to petitioner's claim stub, however, revealed that it was an amplifier, not a suitcase. Moreover, the amplifier was exuding a strong odor of a substance often used to confuse drug sniffing dogs. At this point, the inspectors could reasonably suspect that petitioner had misrepresented the amount and nature of his luggage in order to conceal drug smuggling activity. A limited probe of the amplifier revealed that it contained a large quantity of cocaine. Petitioner's arrest and the search of the other amplifier were then supported by probable cause. At each stage, the customs inspectors' actions were consistent with the Fourth Amendment's reasonableness standard as applied to intransit international passengers. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney OCTOBER 1990 /1/ The court also rejected petitioner's contentions that his postarrest statements should have been suppressed (Pet. App. B4-B5); that there was insufficient evidence that he knew of the cocaine hidden within the amplifiers (id. at B5-B7); and that he was entitled to credit, under the Sentencing Guidelines, for admitting responsibility for his criminal conduct (id. at B7). The petition does not seek further review of these issues. /2/ United States v. Montoya, 782 F.2d 1554, 1555 (11th Cir. 1986); United States v. Muench, 694 F.2d 28, 33 (2d Cir. 1982), cert. denied, 461 U.S. 908 (1983); United States v. Gomez-Tostado, 597 F.2d 170 (9th Cir. 1979). The First Circuit, which has decided a large number of cases involving drug traffickers stopping in Puerto Rico on their way from Colombia or Jamaica to some other foreign country, consistently has rejected arguments that would immunize these international traffickers from federal prosecution. See, e.g., United States v. Franchi-Forlando, 838 F.2d 585, 587 (1st Cir. 1988) (citing cases). While a Fifth Circuit decision upholding the conviction of an international trafficker who tried to pass through U.S. Customs reserved the question whether a different result might be appropriate for a "true in-transit passenger who is never brought under the control of the customs authorities," United States v. Pentapati, 484 F.2d 450, 451 (5th Cir. 1973), no court has recognized such an exemption from the drug laws. /3/ The cases upon which petitioner relies (Pet. 5) held only that due process requires proof beyond a reasonable doubt of every element of an offense. Francis v. Franklin, 471 U.S. 307 (1985); Connecticut v. Johnson, 460 U.S. 73 (1983); Sandstrom v. Montana, 442 U.S. 510 (1979). They have no relevance to the question presented by this case -- which is whether knowledge that an international flight will stop in the United States is an element of federal drug statutes. /4/ Although the question presented in the petition raises only the constitutional sufficiency of the search, petitioner also argues that the customs inspectors lacked authority to search his baggage. Pet. 9. This contention is without merit. Under 19 U.S.C. 1496, the Customs Service has authority to "cause an examination to be made of the baggage of any person arriving in the United States in order to ascertain what articles are contained therein and whether subject to duty, free of duty, or prohibited notwithstanding a declaration and entry therefor has been made" (emphasis added). In addition, 19 U.S.C. 1581(a) empowers customs officers to "board any vessel or any vehicle at any place" in U.S. customs territory, to "search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board." These provisions have long been interpreted to authorize customs searches of in-transit passengers and baggage stopping in the United States en route to another country. See United States v. McKenzie, 818 F.2d 115, 119 (1st Cir. 1987) (citing Leiser v. United States, 234 F.2d 648, 650 (1st Cir.), cert. denied, 352 U.S. 893 (1956)). In light of these statutes, petitioner's contention that 19 U.S.C. 1467 did not authorize the search "is beside the point." United States v. Franchi-Forlando, 838 F.2d 585, 587 (1st Cir. 1988).