UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4374

JOSE M. SALAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CR-97-328)

Submitted: December 8, 1998

Decided: December 31, 1998

Before HAMILTON, WILLIAMS, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cary B. Bowen, Amy M. Curtis, BOWEN, BRYANT, CHAMPLIN

& CARR, Richmond, Virginia, for Appellant. Helen F. Fahey, United

States Attorney, N. George Metcalf, Assistant United States Attorney,

Ann J. Haselbauer, Third-Year Law Student, Richmond, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Jose Salas of possession with intent to distribute

heroin in violation of 21 U.S.C. § 841(a)(1) (1994), and aiding and

abetting in violation of 18 U.S.C. § 2 (1994). Salas appeals his conviction, asserting that the district court erred in denying his motion to

suppress evidence and that the evidence was insufficient. We affirm.

I.

The facts are not in dispute. Testimony at the suppression hearing

disclosed that police officers conducting interdiction at the bus station

in Richmond, Virginia, watched three adults (one of whom was Salas)

and a child place three bags in the trunk of a taxi after they left the

bus. Special Agent Anthony Patterson, who was dressed in plain

clothes, approached the taxi and identified himself to Salas by displaying his badge. Agent Patterson asked Salas in English if he would

talk to him. When Salas exited the taxi, Agent Patterson asked if he

could see Salas' bus ticket. Salas showed Agent Patterson the ticket

and told him that he lived in Richmond and had just arrived from

New York.

Agent Patterson explained to Salas that he and other officers were

investigating the flow of drugs into Richmond and asked Salas if he

had any drugs. Salas said that he did not. Agent Patterson then asked

Salas if he could search the bags. Salas said yes, asked the taxi driver

to open the trunk, and identified all three bags as his.

Agent Patterson searched the bags and discovered red, white, and

yellow candles, each of which was in a glass container and wrapped

in newspaper. Patterson removed a red candle and noticed either

paper or plastic in the bottom of the glass container. When asked

about the substance, Salas responded that the candles were just made

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that way. Another officer also inquired about the red candle. Salas

told him that he had purchased it in New York to use for religious

purposes and that it cost ninety-nine cents. Salas then placed the candle between his legs. The officer offered to buy the red candle from

Salas for two dollars. Salas removed a yellow candle from the bag

and offered it to the officer. The officer again said he was interested

in buying the red candle, and Salas handed it to the officer, who, in

turn, gave the candle to Patterson. Patterson broke the candle on the

sidewalk, and he discovered approximately sixty grams of heroin. The

red candles in the bags contained heroin, but the yellow and white

candles did not.

The officers arrested Salas and gathered routine information. Salas

answered all of the officers questions in English. Although he spoke

English with an accent, he appeared to understand the officers and

conversed in English with little difficulty. When the officers began to

advise Salas of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), he said for the first time that he did not understand English.

Although Salas was a native of the Dominican Republic and had been

in the United States only four years, he did not inform the officers that

he was a foreign national or a citizen of another country nor did the

officers inquire as to his nationality. Salas testified that he would have

obtained assistance from the consulate had he been informed that he

could do so.

Salas moved to suppress the heroin on the grounds that he did not

consent voluntarily to the search and that the officers violated Article

36 of the Vienna Convention.1 The district court denied the motion,

finding that under the totality of the circumstances, Salas voluntarily

consented to the search of his bags and that the failure to allow Salas

to contact his consul did not violate his constitutional rights. After

Salas' trial, the jury convicted him of possession with intent to distribute heroin.

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1 The district court sua sponte questioned whether officers could have

stopped Salas in the first instance. Salas' counsel stated that under

Florida v. Royer, 460 U.S. 491 (1983), the officers' interdiction did not

violate the Fourth Amendment.

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II.

Salas first challenges on appeal the district court's denial of the

motion to suppress, asserting that he did not consent voluntarily to the

search and that officers violated provisions of the Vienna Convention.2

On motions to suppress evidence, we review the factual findings

under the clearly erroneous standard and review the legal conclusions

de novo. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.

1992). Whether Salas voluntarily consented to the search of his bags

is a factual question which we review for clear error. See United

States v. Elie, 111 F.3d 1135, 1144 (4th Cir. 1997).

Salas asserts that his consent was not voluntary. A police officer

may conduct a search without a warrant and without probable cause

if the person in control of the area voluntarily consents to a search.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In determining whether consent is voluntary, the court should look to the

totality of the circumstances. See id. at 227. Appropriate factors to

consider include "the characteristics of the accused (such as age,

maturity, education, intelligence, and experience) as well as the conditions under which the consent to search was given (such as the officer's conduct; the number of officers present; and the duration,

location, and time of the encounter)." United States v. Lattimore, 87

F.3d 647, 650 (4th Cir. 1996).

Here, the record supports the finding that Salas voluntarily consented to the search of his bags. When Agent Patterson asked Salas

if he could search the bags, Salas said yes and asked the driver to

open the trunk. Salas identified all three bags as his. Neither Salas'

characteristics nor the conditions surrounding Salas' consent render

the consent involuntary. At the time of the encounter, Salas had been

living in the United States for four years and appeared to the officers

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2 Salas also contends that he was seized in violation of the Fourth

Amendment when the officers approached him at the taxicab outside the

bus station. Salas, however, has waived review of this claim by failing

to assert it in the district court after the district court raised the issue. See

United States v. David, 83 F.3d 638, 641 n.5 (4th Cir. 1996) ("Waiver

. . . is the intentional relinquishment or abandonment of a known right.")

(internal quotation marks and citations omitted).

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to speak and understand English with little difficulty. There were only

two officers dressed in plain clothes who talked to Salas, and they did

not display their weapons. Although Salas contends that officers

should have informed him of his right to refuse consent, the government need not produce evidence that the defendant knew of this right

to prove that the consent was voluntary. See Lattimore, 87 F.3d at

650. We therefore find that the district court did not clearly err in

finding that Salas voluntarily consented to the search. See Elie, 111

F.3d at 1144.

Salas also contends that the district court erred in denying the

motion to suppress based on the officers' failure to inform him that

upon his arrest he had the right to contact the Dominican Republic

Consul, as required by the Vienna Convention on Consular Relations,

Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101. The Vienna Convention

requires an arresting government to inform a foreign national who has

been arrested of his right to contact his consul. See id. Assuming,

without deciding, that Salas has standing to raise this issue, we find

that he is not entitled to relief.

Neither party disputes that Salas was not informed of his right to

contact his consul. However, rights created by international treaties

do not create rights equivalent to constitutional rights. Cf. Murphy v.

Netherland, 116 F.3d 97, 100 (4th Cir.) (habeas corpus proceeding),

cert. denied, 118 S. Ct. 26 (1997). Salas therefore must establish prejudice to prevail. Cf. Breard v. Greene, 118 S. Ct. 1352, 1355 (1998)

(habeas corpus proceeding and denial of petitions for writ of certiorari); Waldron v. INS, 17 F.3d 511, 518-19 (2d Cir. 1993) (deportation

proceeding). Although Salas contends that had he been informed of

his right under Article 36 he would have exercised it, he has not

asserted how the failure would have affected the outcome of his case.

We therefore find that the district court properly rejected this claim

as a ground to suppress the heroin.

III.

Finally, Salas asserts that the evidence was insufficient to convict

him of possession with intent to distribute heroin. In deciding whether

the evidence was sufficient, the relevant question is not whether the

court is convinced of guilt beyond a reasonable doubt, but rather

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whether the evidence, when viewed in the light most favorable to the

government, was sufficient for a rational trier of fact to have found

the essential elements of the crime beyond a reasonable doubt. See

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc),

cert. denied, 117 S. Ct. 1087 (1997); Glasser v. United States, 315

U.S. 60, 80 (1942). Moreover, circumstantial evidence is sufficient to

support a guilty verdict even though it does not exclude every reasonable hypothesis of innocence. See United States v. Jackson, 863 F.2d

1168, 1173 (4th Cir. 1989). If substantial evidence exists to support

a verdict, the verdict must be sustained. See Glasser, 315 U.S. at 80.

To establish that Salas possessed a controlled substance with the

intent to distribute, the government must prove that: (1) he possessed

the controlled substance knowingly; and (2) with the intent to distribute. See Burgos, 94 F.3d at 873. Possession may be actual or constructive and may be proven by circumstantial evidence. See id. Intent

to distribute may be inferred from quantities of drugs too large for

personal consumption. See id.

We find that the evidence was sufficient to convict Salas of possession with intent to distribute. Salas admitted ownership of the bags in

which the red candles containing heroin were found. He knew that the

red candles contained the heroin because he did not want to sell the

red candle to the police officer but rather offered to sell a yellow candle instead. Although Salas testified that another man owned the bags

containing the heroin, the jury necessarily considered and rejected

that testimony. We do not review the jury's credibility determinations. See United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

Finally, Salas' intent to distribute may be inferred from the amount

of heroin seized from one red candle, approximately sixty grams--an

amount too large for personal consumption. See Burgos, 94 F.3d at

873; cf. United States v. Bell, 954 F.2d 232, 235 (4th Cir. 1992) (holding that thirteen and one-half grams of crack cocaine sufficient for

jury to infer intent to distribute), overruled on other grounds, Burgos,

94 F.3d at 862. From these facts a rational trier of fact could have

found that Salas possessed the heroin knowingly and with an intent

to distribute. See Burgos, 94 F.3d at 862, 873.

IV.

Accordingly, we affirm Salas' conviction. We dispense with oral

argument because the facts and legal contentions are adequately pre-

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sented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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