United States v. Jose Del Carmen Leal, A/K/A "Aldo,", 831 F.2d 7, 1st Cir. (1987)

831 F.
2d 7
UNITED STATES of America, Appellee,

v.
Jose Del Carmen LEAL, a/k/a "Aldo," Defendant, Appellant.
No. 86-1117.
United States Court of Appeals,

First Circuit.
Sept. 9, 1987.
Decided Oct. 19, 1987.
Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, for

defendant, appellant.
Jorge E. Vega-Pacheco, Asst. U.S. Atty., San Juan, P.R., with whom
Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R. was on brief, for
appellee.
Before CAMPBELL, Chief Judge, GARTH,* Senior Circuit Judge, and
SELYA, Circuit Judge.
PER CURIAM.
Appellant Jose Del Carmen Leal ("Leal") was convicted of conspiring to

knowingly and intentionally possess with intent to distribute a controlled
substance, 21 U.S.C. Secs. 841(a)(1) and 846 (1982), with importing a
controlled substance, 21 U.S.C. Sec. 952 (1982), and with aiding and abetting
the unlawful possession of a controlled substance with intent to distribute it, 21
U.S.C. Sec. 841(a)(1) (1982); 18 U.S.C. Sec. 2 (1982). Leal was sentenced on
all counts to a total of twelve years imprisonment, a $20,000.00 fine and a
special parole term of six years.
Leal appeals his conviction on two grounds, both of which are related to his
conviction for importation. We find neither of his claims meritorious.
I.
On August 27, 1985, the Ned Lloyd Holandia, a container ship of Dutch
Registry, arrived in Ponce, Puerto Rico, from Jamaica and was berthed at the
Ponce Pier where its cargo was immediately off-loaded. On August 28, 1985,
United States Customs officials, acting upon information not disclosed at trial,
undertook an investigation of the ship's cargo. This investigation culminated in
the discovery of 2,253 pounds of marijuana which had been hidden in a
shipping container whose contents had been described as scrap metal in the Ned
Lloyd Holandia's manifest. After discovering the ship's illicit contraband, the
customs officials resealed the shipping container and established around-theclock covert surveillance of the container.
One of Leal's codefendants, Felix Serra Nieves ("Serra"), the government's

primary witness at trial, testified that three days after the ship arrived in Puerto
Rico, Serra was approached by another codefendant, Jose Albertorio Casiano
("Albertorio"), a security guard at the pier. Albertorio asked Serra if he would
be interested in assisting in the unloading of the marijuana. Serra agreed.
On September 3rd, Albertorio and Serra met briefly with Leal and the three
agreed that Serra and Leal would travel to San Juan. There they met with two
unidentified individuals in a hotel. During this meeting, Serra was given keys to
a Suzuki automobile and he was instructed to drive back to Ponce. In Ponce,
Serra picked up Albertorio and codefendant Rafael Santiago, and the three
proceeded to the Ponce beachfront where they awaited Leal's return from San
Juan. After Serra's departure from San Juan, Leal obtained from the two
unidentified men a penciled drawing of the container containing the
contraband. He then returned to Ponce for his rendezvous with Serra,
Albertorio and Santiago.
At 4:00 p.m. the same day, members of the customs surveillance team observed
the marijuana-filled container being moved to a spot in the enclosed off-loading
area directly adjacent to the surrounding fence. Testimony at trial disclosed that
the relocation of the container had been ordered by Albertorio.
At approximately 10:30 p.m., the four defendants proceeded to the Ponce Pier
where Leal dropped off his three codefendants. Serra and Albertorio then
climbed over the fence surrounding the container area and onto the container
containing the marijuana. Three members of the surveillance team watched
Serra and Albertorio unload a number of bales of marijuana and drop them to
Santiago who remained on the ground. At around 11:00 p.m., customs agents
moved in and arrested Serra and Albertorio on the scene.
On September 4, 1985, local narcotics agents, acting on information provided

by Albertorio and Serra, arrested Leal. On September 10th, Santiago was also
arrested.
II.
9
Leal raises two arguments in this appeal. Because both of Leal's claims relate to
his conviction for importation of marijuana, we have set out the relevant text of
21 U.S.C. Sec. 952 (1982) below.1
10
Leal's first claim is that the evidence adduced by the government at trial was
insufficient to sustain his conviction for importation of a controlled substance
in violation of Sec. 952(a). The essence of his argument is that he did not
knowingly import the marijuana found in the shipping container into the United
States and is thus implicated only with respect to the activities that transpired
after the marijuana had been off-loaded. In support of his claim, Leal points to
the fact that there was no evidence "that [he] had been to Jamaica where the
importation originated ... [or that] he participated in the clandestine placing of
the marijuana in the shipping container in Jamaica, or elsewhere, or arranged
that activity." Appellant's Brief at 8. Leal also stresses that seven days had
elapsed between the date on which the contraband was off-loaded and the date
on which his codefendants were arrested attempting to remove the contraband
from the pier.
11
While the precise temporal parameters of importation have not yet been
addressed by this Court, other courts of appeals have analyzed this issue. It is
clear that the crime of importation does not end the instant the controlled
substance enters the United States. See United States v. Martinez, 763 F.2d
1297, 1304 (11th Cir.1985). Rather, importation is a " 'continuous crime' that is
not complete until the controlled substance reaches its final destination point."
United States v. Corbin, 734 F.2d 643, 652 (11th Cir.1984) (citing United
States v. Jackson, 482 F.2d 1167 (10th Cir.1973), cert. denied, 414 U.S. 1159,
94 S.Ct. 918, 39 L.Ed.2d 111 (1974)); Martinez, 763 F.2d at 1304; United
States v. Godwin, 546 F.2d 145 (5th Cir.1977).
12
In isolating what constitutes the final destination point, the Third Circuit has
stated, in construing the term "importation" for purposes of laying proper
venue, that the final destination of imported contraband is that point beyond the
port of entry where the contraband finally comes to rest prior to distribution.
See United States v. Sandini, 803 F.2d 123 (3d Cir.1986), cert. denied, --- U.S.
----, 107 S.Ct. 1306, 94 L.Ed.2d 161 (1987). Similarly, the court in United
States v. Jackson, 482 F.2d 1167 (10th Cir.1973), has held that the importation
of a controlled substance was not complete on its arrival in California but
continued until the heroin arrived at its destination in Colorado:
13
Admittedly
a crime was committed the moment the heroin package entered the
United States, but discovery of the crime in California did not exhaust it. [citations
omitted]. The illicit scheme originated in Thailand and from there it extended to
Lowry Air Force Base, Colorado. During the illicit venture the heroin was
discovered in California but certainly the crime was not completed there. It was a
continuous crime which received no finality until the package arrived at Lowry Air
Force Base.
14
Jackson, 482 F.2d at 178.
15
With these principles forming the backdrop for our analysis, we need not, in
this case, formulate any rule prescribing the outermost limits of importation
because we are satisfied that whatever those limits might be, they were not
exceeded here. The importation of marijuana in the instant case was still in
progress at the time the defendants were attempting to remove the contraband
from the enclosed container area. While it is true that the importation of the
marijuana had begun when the contraband was off-loaded prior to Leal's direct
involvement, the act of importation continued and was ongoing at the time Leal
was implicated by his codefendants' attempt to remove the contraband from the
pier.
III.
16
Leal's second claim arises out of the district court's ruling that there was
probable cause for his arrest and that certain evidence introduced by the
government at trial was therefore admissible as having been obtained by a
search incident to a lawful arrest. Leal argues that he was entitled to a full
suppression hearing under Fed.R.Crim.P. 12, despite that fact that he failed to
move for such a hearing prior to the beginning of his trial. The relevant sections
of Fed.R.Crim.P. 12 read as follows:
17 Pretrial Motions. Any defense, objection, or request which is capable of

(b)
determination without the trial of the general issue may be raised before trial by
motion. Motions may be written or oral at the discretion of the judge. The following
must be raised prior to trial:
***
18
***
19
20
(3) Motions to suppress evidence; ...
***
21
***
22
23 Effect of Failure to Raise Defenses or Objections. Failure by a party to raise
(f)
defenses or objections or to make requests which must be made prior to trial ... shall
constitute waiver thereof, but the court for cause shown may grant relief from the
waiver.
24
Id. (emphasis added).
25
The language of Fed.R.Crim.P. 12(b)(3) and (f) makes clear that, in the absence
of a grant of relief by the district court on a showing of good cause, Leal
waived his right to a suppression hearing by failing to move for such a hearing
prior to the commencement of his trial. See United States v. Gomez, 770 F.2d
251, 253 (1st Cir.1985); United States v. Barletta, 644 F.2d 50, 54 (1st
Cir.1981). The decision to grant or deny Leal relief under Fed.R.Crim.P. 12(f)
rests in the district court's sound discretion and may not be overturned by this
court absent a showing of abuse. Gomez, 770 F.2d at 253. Here, no such abuse
has been shown.
26
Moreover, even had Leal preserved this issue for appeal, which he did not, the
district court properly found probable cause for Leal's arrest, thus making the
search incident to that arrest lawful. "The constitutionality of a warrantless
arrest 'depends ... upon whether, at the moment the arrest was made, the
officers had probable cause to make it--whether at that moment the facts and
circumstances within their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent [person] in
believing that the [defendant] had committed or was committing an offense.' "
United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting, Beck
v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Of course,
the government need not prove beyond a reasonable doubt that a suspect has
committed an offense prior to making a warrantless arrest, Figueroa, 818 F.2d
at 1023; United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert.
denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979), but need only
make an objective showing that as a matter of probabilities, the defendant was
involved in the criminal activity for which he was arrested. Figueroa, 818 F.2d
at 1023-24; United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977).
27
The probabilities in this case weigh in the government's favor. On the night of
September 3, 1985, after Leal's codefendants had been arrested, they provided
the Ponce Police Department and the customs officers with descriptions of Leal.
Serra described him as "Venezuelan, white, brown hair, tall, thin ... and
approximately 40 years old," while Albertorio described "Aldo" as a
"Venezuelan, white, brown hair, brown eyes and 5'9"-5'11" [in] height and
approximately 39-49 years of age."2
28
Moreover, prior to arresting Leal, the officers had been informed by Serra and
Albertorio that Leal was registered in the Holiday Inn Hotel under the name
"Aldo J. Leal," as the hotel register ultimately reflected. These descriptions and
information provided by Leal's codefendants immediately after their arrest,
were "sufficient in themselves to warrant a man of reasonable caution in the
belief that the suspect had committed or was committing an offense." United
States v. Baldacchino, 762 F.2d 170, 175 (1st Cir.1985) (citing Draper v.
United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)).
IV.
29
We will affirm Leal's judgment of sentence ordered by the district court on

January 25, 1985.
Of the Third Circuit, sitting by designation
21 U.S.C. Sec. 952 provides, in pertinent part, as follows:

Importation of controlled substances
***
It shall be unlawful to import into the customs territory of the United States
from any place outside thereof (but within the United States), or to import into
the United States from any place outside thereof, any controlled substance in
schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule
III, IV or V of subchapter I of this chapter....
The information provided to the authorities and referred to in the text was
available to the government and would have been produced at a suppression
hearing had one been requested and held. See Appellee's Brief at 11

United States v. Jose Del Carmen Leal, A/K/A "Aldo,", 831 F.2d 7, 1st Cir. (1987)

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United States v. Jose Del Carmen Leal, A/K/A "Aldo,", 831 F.2d 7, 1st Cir. (1987)

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831 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, for

Appellant Jose Del Carmen Leal ("Leal") was convicted of conspiring to

One of Leal's codefendants, Felix Serra Nieves ("Serra"), the government's

On September 4, 1985, local narcotics agents, acting on information provided

Jackson, 482 F.2d at 178.

17 Pretrial Motions. Any defense, objection, or request which is capable of

(3) Motions to suppress evidence; ...

Id. (emphasis added).

We will affirm Leal's judgment of sentence ordered by the district court on

Of the Third Circuit, sitting by designation

21 U.S.C. Sec. 952 provides, in pertinent part, as follows:

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