UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4543

MARTIR VELASQUEZ ARAGON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-97-18)

Submitted: June 23, 1998

Decided: July 28, 1998

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Sandra R. Robinson, Manassas, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, James K. Foster, Special Assistant

United States Attorney, Alexandria, 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Unpublished opinions are not binding precedent in this circuit.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:

After a bench trial, the district court convicted Martir Velasquez

Aragon on several counts arising from his possession of a large quantity of powder cocaine on an international flight. See 21 U.S.C.

§§ 841(a)(1), 952(a), 955, 960(a)(1) & (a)(2) (1994); see also 49

U.S.C. § 46505(b)(1) (1994). Before trial, Aragon attempted unsuccessfully to suppress the cocaine that was discovered in his luggage,

claiming that the search of his bags violated the Fourth Amendment.

In this appeal, Aragon assigns error to the district court's ruling following the suppression hearing. Additionally, Aragon claims that

there was insufficient evidence to support his convictions related to

the cocaine in his possession and the concealed weapon on his person.

Because we find no merit to Aragon's contentions, we affirm each of

the criminal convictions.

Arriving at Dulles International Airport after a flight from El Salvador, Aragon was subjected to a routine border search. Although

Aragon presented himself at the border as a professional courier, he

did not have the documentation couriers ordinarily use in their business. In the course of her routine search, the customs agent emptied

Aragon's suitcase. After observing that Aragon appeared nervous and

that his suitcase had an unusual bottom, the investigating agent

decided to take the bag out of Aragon's sight and drill a small hole

in its bottom. When cocaine poured out of the bag, agents cut it open

and discovered more than 500 grams of cocaine. Aragon was arrested

and instructed to empty his pockets, one of which contained a switchblade knife. During questioning, Aragon specifically denied knowing

about the cocaine in the bag before the questioning agent informed

Aragon what type of drugs had been discovered.

Before trial, the district court found that the search was entirely

legal and refused to suppress the cocaine. When he took the stand in

his own defense, Aragon testified that the bag was not his and he did

not know that he had carried cocaine into the United States. Aragon

stated that he was to receive $100 from someone named Flor Marie

for delivering the suitcase. Aragon's attempts to contact Flor Marie

that night were unsuccessful. After considering the evidence, the dis-

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trict court convicted Aragon and sentenced him to 87 months in

prison. Aragon appeals his conviction.

Aragon first assigns error to the district court's refusal to suppress

the cocaine discovered in the suitcase. Aragon claims that the search

was not supported by a reasonable articulable suspicion. For the initial search of Aragon's possessions, that level of suspicion was not

required. Routine border stops and searches may be conducted without probable cause or reasonable articulable suspicion, in order to regulate collection of duties and prevent introduction of contraband. See

United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).

Border searches have been considered to be "reasonable" by definition because the person or item in question came into the United

States from elsewhere. See United States v. Ramsey, 431 U.S. 606,

619 (1977). There is no question but that the customs agent conducted

her initial search of the baggage in full compliance with the Fourth

Amendment.

Following the more pedestrian inspection, the investigating agent

also drilled a hole in the bottom of Aragon's bag. It is at least debatable that this action went beyond the boundaries of a routine inspection. See United States v. Johnson, 991 F.2d 1287, 1293 (7th Cir.

1993) (assuming but not deciding removal of inner shell of suitcase

was non-routine search). The Supreme Court did not define "routine

search" in Montoya de Hernandez. However, only strip searches and

body cavity searches have consistently been considered sufficiently

intrusive to be non-routine. See United States v. Braks, 842 F.2d 509,

512-13 (1st Cir. 1988); see also United States v. Ramos-Saenz, 36

F.3d 59, 61 (9th Cir. 1994). Neither is involved here, but because

some degree of force was used to continue the search, see Braks, 842

F.2d at 512, we will assume for the purposes of this case that this was

something more than a "routine search."

Before the agent could initiate a non-routine search, a reasonable

suspicion was required. See United States v. Oriakhi, 57 F.3d 1290,

1297 (4th Cir. 1995). Aragon exhibited unusual nervousness as he

approached the customs station and during questioning. A person's

nervousness alone may be enough to support a non-routine search.

See United States v. Carreon, 872 F.2d 1436, 1442 (10th Cir. 1989).

In addition, the investigating customs agent noticed during the course

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of the routine search that a flap in the bottom of the bag, which would

ordinarily be rigid, was pliable. Her experience with luggage led her

to expect that the flap would contain a piece of cardboard, but it did

not. Coupled with Aragon's nervousness, the agent had ample evidence on which to form her reasonable suspicion. Even if we assume

that drilling a hole into the bag was a non-routine search, the district

court did not err in concluding that the customs agent had reasonable

suspicion to support the more intrusive search.

Aragon's suggestion that nervousness alone is not sufficient is

premised on United States v. Taylor, 917 F.2d 1402, 1409 (6th Cir.

1990). Not only is Taylor inapposite because it did not concern a border search, but the customs agent in this case possessed additional

information arousing her suspicion, namely, the odd nature of Aragon's suitcase. In addition, in an attempt to imply that the agent somehow violated Aragon's Fourth Amendment rights by her failure to

obtain a search warrant, Aragon again relies on cases not applicable

to border searches. See United States v. Place , 462 U.S. 696, 698

(1983); United States v. Ross, 456 U.S. 798, 800 (1982). Applying the

appropriate standard to the customs agent's investigation, Aragon's

Fourth Amendment rights were not offended in any way. The district

court did not err in admitting the evidence.

Aragon next challenges the sufficiency of the evidence used to convict him. Aragon contends that his convictions are"supported solely

by the fact that he merely possessed a large amount of cocaine." In

attacking the sufficiency of the evidence, Aragon primarily impugns

the sufficiency of the Government's investigation regarding the individual Aragon attempted to implicate as the owner of the suitcase

containing cocaine. This court will sustain a criminal conviction

where "the evidence, when viewed in the light most favorable to the

government, [is] sufficient for a rational trier of fact to have found the

essential elements of the crime beyond a reasonable doubt." United

States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see also Glasser

v. United States, 315 U.S. 60, 80 (1942). Circumstantial as well as

direct evidence is considered, and the government is given the benefit

of all reasonable inferences from the facts proven to those sought to

be established. See United States v. Tresvant , 677 F.2d 1018, 1021

(4th Cir. 1982). "[A]n appellate court's reversal of a conviction on

grounds of insufficient evidence should be `confined to cases where

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the prosecution's failure is clear.'" United States v. Jones, 735 F.2d

785, 791 (4th Cir. 1984). (quoting Burks v. United States, 437 U.S.

1, 17 (1978)). During this inquiry, this court neither weighs evidence

nor reviews witness credibility. See United States v. Saunders, 886

F.2d 56, 60 (4th Cir. 1989).

To support Aragon's conviction, the Government was required to

present evidence of possession of cocaine found in the suitcase and

intent to distribute on the part of Aragon. Aragon contends that he

was not aware of the cocaine in the suitcase and was therefore not in

knowing possession of the drugs.* However, the district court could

infer from Aragon's possession of and control over the suitcase--

something he does not deny--that he was aware of its contents. See

United States v. Tylkowski, 9 F.3d 1255, 1260-61 (7th Cir. 1993).

Moreover, Aragon denied that he knew there was cocaine in the bag

before he was informed specifically what drugs the customs agents

discovered in the suitcase. This further suggests his knowledge of the

cocaine in his possession. The district court did not find Aragon's testimony that he was unaware of the presence of the drugs credible.

This court is not is a position to disturb that finding. See Saunders,

886 F.2d at 60.

Aragon suggests that the district court gave too much weight to the

fact that Aragon responded he did not know the cocaine was in the

suitcase before the agents informed him what type of drugs they had

discovered to determine that he had knowledge of the drugs' presence

in the bag. This contention mistakes the lens through which we must

view the evidence. Taken in a light most favorable to the Government, Aragon's identification of the drugs as cocaine before the

agents told him it was cocaine they found is evidence of his knowledge of their presence. There was no clear failure of evidence on the

part of the prosecution. Aragon's conviction for possession with

intent to distribute cocaine was supported by evidence sufficient for

a rational trier of fact to find Aragon guilty beyond a reasonable

doubt.

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*Aragon does not challenge the Government's proof regarding his

intent to distribute the cocaine. See United States v. Roberts, 881 F.2d

95, 99 (4th Cir. 1989) (noting intent may be inferred from quantities too

large for personal consumption).

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Finally, although Aragon does not elaborate on this issue in his

brief, we conclude that there was also sufficient evidence to convict

him of possession of a weapon on an aircraft. When Aragon was

searched pursuant to his arrest, he was in possession of a switchblade.

Aragon came directly from the aircraft to the customs area. There is

no evidence of record which would suggest where he might have

obtained the weapon on his way from the aircraft to the customs area.

Again, considering the evidence in a light most favorable to the verdict, there was sufficient evidence to convict Aragon of this crime.

Finding no merit to any of Aragon's contentions on appeal, we

affirm his convictions. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED

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