UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5194

YVONNE RENE LEIGH,

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-94-406)

Argued: November 2, 1995

Decided: March 6, 1996

Before RUSSELL and WIDENER, Circuit Judges, and MICHAEL,

Senior United States District Judge for the Western District of

Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Melanie Carstairs Eyre, Fairfax, Virginia, for Appellant.

Leslie Bonner McClendon, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United

States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Yvonne Leigh was convicted of both importing a controlled substance into the United States' customs territory in violation of 21

U.S.C. § 952(a) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). She appeals her convictions and sentence on four grounds. First, she argues that the district court erred in

denying her motion in limine to exclude the expert testimony of a

United States Custom Service Agent. Second, she argues that the district court erred in admitting into evidence the written report of a

Government witness. Third, she contends that there was insufficient

evidence to sustain her conviction. And fourth, she alleges that the

district court erred in denying her motion that she be sentenced pursuant to the United States Sentencing Guidelines § 5C1.2. After reviewing each of her arguments, we affirm her convictions and sentence.

I.

When six suitcases remained unclaimed following a flight from

Amsterdam to Dulles International Airport in Washington D.C., they

were placed in the custody of U.S. Customs Inspectors. Upon examining the bags' exteriors, an inspector noticed an unusually thick bulge

on the bottom of four of the bags. Because the luggage was

unclaimed, an airline representative opened one of the bags. As the

inspector excised the bulge from the opened suitcase's back wall, a

strange odor emanated from a concealed, board-like insert. The insert

contained a white powdery substance, which field-tested positive for

heroin. Similar packages found in four of the six luggage pieces

yielded approximately three kilograms of heroin mixture with a minimum wholesale value of $500,000.

Three days later, Yvonne Rene Leigh ("Leigh") arrived at Dulles

seeking the luggage. Leigh had just flown in from Sierra Leone with

 2
her two nieces. Although Leigh held all six claim tickets to the luggage, her nieces picked up the two bags that did not contain the heroin. Customs Agents apprehended Leigh when she attempted to leave

the customs territory with the heroin-filled bags.

After waiving her Miranda rights and during her interrogation by

U.S. Custom Agents, Leigh claimed that her nieces"had nothing to

do with it," that "they know nothing" and that "if there are problems,

the whole thing should fall on me." Leigh also told the investigators

that her boyfriend of several years paid for the trip because she was

visiting his family in Sierra Leone, and that it was his brother who

allegedly gave her the heroin-filled luggage and instructed her to take

the bags back to the United States. The boyfriend, however, was

never located, and witnesses testified that her boyfriend did not have

family in Sierra Leone.1 Leigh also testified that she travelled

infrequently--blatantly contradicting her travel records and passport,

which revealed she had made at least nine trips to West Africa since

1992. It was also suspicious that Leigh made such frequent and

expensive trips abroad despite that her sole source of income was

public assistance.

The sentencing judge noted that Leigh's base offense level was 32

and that she had a category I criminal history, resulting in a range of

97 to 121 months. But the sentencing judge also noted that her § 841

conviction had a statutory mandatory minimum of one-hundred

twenty (120) months. Consequently, the trial judge sentenced Leigh

to concurrent sentences of one-hundred twenty (120) months on each

count.

II.

A.

Leigh contends that her ability to prepare her defense was prejudiced because the district court erred in denying her motion in limine

by permitting a customs agent to testify for the Government as an

_________________________________________________________________

1 The Government was very interested in locating Leigh's boyfriend

because he was a well-known and much sought-after leader of an international heroin trafficking organization.

 3
expert on heroin smuggling and trafficking into the eastern United

States. Leigh contends that the district court should have barred the

expert's testimony because the Government disclosed the expert's

identity and substance of his testimony within twenty-four hours of

trial thus violating paragraph five of the pretrial discovery order.

When reviewing a district court's ruling on an evidentiary motion,

this court inquires whether the district court abused its discretion.

United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993), cert.

denied, 62 U.S.L.W. 3640 (U.S. 1994). We hold the district court did

not abuse its discretion.

Paragraph five of the pretrial discovery order contained the following direction:

The Government shall disclose to the defendant a written

summary of testimony the Government intends to use under

Rules 702, 703, or 705, Federal Rules of Evidence, during

its case in chief at trial. This summary shall describe the witnesses' opinions, the bases and reasons therefor, and the

witnesses' qualifications.

No time requirement was stated. Following a hearing on defense

counsel's motion in limine to preclude the expert's testimony, the district court ruled the testimony admissible provided that it was confined to:

[w]hat heroin is and where it comes from, whether a quantity is distributable or for personal use, that West Africa is

a frequent point of departure for heroin importation into the

East Coast of the United States . . . the [wholesale prices]

it would command . . . the acquisition of heroin in West

Africa . . . the sale price of that heroin in the United States

. . . the methods of smuggling, and the different methods

that are used by persons who have been arrested in the eastern part of the United States.

The district court did not permit the expert to testify that numerous

trips to West Africa are indicia of criminal drug trafficking.

 4
Leigh contends that the Government violated the pretrial discovery

order and that the district court erroneously permitted the expert to

testify. To support her contention, Leigh cites this court's decision in

United States v. Seeright, 978 F.2d 842 (4th Cir. 1992). We believe,

however, that Leigh's reliance on Seeright is misplaced. In Seeright,

we upheld the district court's refusal to permit the defendant from

calling two witnesses to the stand when Seeright disclosed the witnesses' identities to the Government three days before trial. Although

the parties were not bound by a pretrial discovery order, the defense

was bound by Fed.R.Crim.P. 12.3(a)(2) to disclose, upon the Government's request, all witnesses testifying on a public authority defense.

Thus, the error admonished in Seeright was the defendant's untimely

disclosure of the existence of certain witnesses; Leigh's case involves

the untimely disclosure of the substance of the witness' testimony.

The evidence of record reveals that, in accordance with the pretrial

discovery order, the Government notified defense counsel of the

expert's identity, qualifications, and area of expertise one week before

trial, when the Government filed the expert's resume as one of the

trial exhibits. The fact that Leigh's trial counsel learned the substance

of the expert's testimony only within twenty-four hours of trial did

not thwart her ability to prepare rebuttal evidence. Leigh knew the

charges leveled against her. Upon receipt of the expert's resume, she

could have contacted the expert and interviewed him regarding his

proposed trial testimony. Furthermore, the defense could have also

proffered its own narcotics trafficking expert to rebut the Government's expert. Thus, we find no merit in Leigh's claim that she was

prejudiced in preparing her defense. Consequently, we hold that the

district court did not abuse its discretion in permitting the Government's expert to testify.

B.

Next, Leigh contends the district court erroneously admitted prejudicial and damaging information into evidence when it permitted the

Government to admit the entire written report of Customs Senior Special Agent Phillip Reed ("Reed") under Federal Rule of Evidence

801(d)(1)(B). We review the district court's evidentiary decisions for

abuse of discretion. United States v. Hassan El , 5 F.3d 726, 731 (4th

Cir. 1993), cert. denied, 62 U.S.L.W. 3640 (U.S. 1994).

 5
In its case-in-chief the Government introduced Reed's testimony

regarding his interview of Leigh on the night of her arrest. Prior to

trial, defense counsel received Reed's full report of investigation.

Consequently, during cross-examination defense counsel attempted to

impeach Reed by pointing out that certain facts to which he testified

on direct were not contained in his report of investigation. Specifically, defense counsel focused on Reed's account of Leigh's comments concerning her nieces. Defense counsel pointed out that Reed's

report noted that Leigh had said that her nieces"had nothing to do

with it," while his trial testimony recounted that Leigh had said "they

don't know anything about it." On redirect, the Government sought

to introduce Reed's entire three page report into evidence, based on

defense counsel's attempted impeachment. Over defense counsel's

objection, the district court admitted the entire report.

Leigh contends that the admission of the entire written report was

error and was damaging to Leigh. We find that the full report was

properly admitted as a prior consistent statement. Rule 801(d)(1)(B)

specifically permits the proffering of prior consistent statements to

rebut a charge of recent fabrication. We maintain that the trial court

has full discretion over the extent to which prior consistent statements

are admitted. United States v. De Vore, 423 F.2d 1069, 1073 (4th Cir.

1970), cert. denied, 402 U.S. 950 (1971). In the instant case, the district court, having heard both the Government's argument for admitting the statement into evidence and the defense's objections to its

admission, made the decision to admit the report. The decision to

admit the report was clearly within the discretion of the trial court.

See United States v. Parodi, 703 F.2d 768, 774-775 (4th Cir. 1983)

(prior consistent statements properly admitted by trial court); United

States v. Dominguez, 604 F.2d 304, 311 (4th Cir. 1979) (trial court

properly admitted prior consistent statements of Government witness

pursuant to Fed. R. Evid. 801(d)(1)(B) after witness' credibility was

challenged), cert. denied, 444 U.S. 1014 (1980).

Leigh further contends that the district court impermissibly allowed

the entire report to be admitted into evidence because many of the

statements in the report were never even the subject of Agent Reed's

direct testimony at trial. The "Doctrine of Completeness," however,

is an equitable remedy employed by the court when fairness dictates

that the remainder of the report be received so that the jury will not

 6
be misled by those segments of the prior statement used on crossexamination. United States v. Rubin, 609 F.2d 51, 63 (2d Cir. 1979).

The Supreme Court has emphasized that the doctrine is important

"when one party has made use of a portion of a document, such that

misunderstanding or distortion can be averted only through presentation of another portion, the material required for completion is ipso

facto relevant and therefore admissible. . . ." Rainey v. Beech Aircraft

Corporation, 488 U.S. 153, 172 (1988).

In the instant case, defense counsel referenced Reed's report several times, specifically challenging semantic discrepancies between

Reed's report and his trial testimony. But the record reveals that while

attempting to impeach Reed, defense counsel confused herself when

referencing between Reed's report and his testimony. We believe this

situation necessitated that the district court rely on the Doctrine of

Completeness to resolve any confusion among the jurors. Accordingly, we hold that the district court did not abuse its discretion in permitting Reed's entire written statement into evidence.

C.

Next, Leigh contends that the district court should not have denied

her motion for judgment of acquittal. She believes that there was

insufficient trial evidence to establish that she knew that heroin was

present in her luggage. When reviewing the denial of a motion for

judgment of acquittal, this court must affirm the jury's verdict unless

no reasonable trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. United States v. Johnson, 659

F.2d 415, 419 (4th Cir. 1981). We view the evidence in the light most

favorable to the verdict, giving the Government all reasonable inferences as to the existence of proof on the disputed element. See id.;

United States v. Zandi, 769 F.2d 229, 235 (4th Cir. 1985).

Determining whether or not sufficient evidence exists to convict is

a fact-specific inquiry which the fact-finder should make after resolving conflicts in witness' testimony, assessing their credibility, and

weighing all the evidence before it. United States v. Manbeck, 744

F.2d 360, 392 (4th Cir. 1984), cert. denied, 469 U.S. 1217 (1985). At

trial, the Government presented the following evidence:

 7
(1) that Leigh's trip to Sierra Leone, where she acquired

the heroin filled luggage, was one of at least nine trips

she had taken to West Africa in less than five years;

(2) that Leigh received public assistance and received substantial cash gifts from her West African boyfriend;

(3) that her West African boyfriend financed her trips so

that she could allegedly bring presents to his relatives;

(4) that her boyfriend provided enough money so that a

relative of Leigh's could travel with her;

(5) that said boyfriend had suspiciously not surfaced since

her arrest;

(6) that Leigh received the suitcases under suspicious

circumstances-allegedly from her boyfriend's relative,

who in turn allegedly instructed her to take those specific suitcases back to the United States with her;

(7) that after Leigh accepted the heroin-filled suitcases

from her boyfriend's relative, she gave him her suitcases in return;

(8) that the four heroin-filled suitcases each had a noticeable bulge;

(9) that Leigh made the following statements to U.S. customs agents when she was apprehended "If there are

any problems, my nieces, my nieces don't know anything about it. If anybody's going to get in trouble, let

it all fall on me"; and

(10) that Leigh was considered the most successful courier

in the Nigerian based heroin smuggling organization

run by her boyfriend.

Although some of the evidence of record is circumstantial, we believe

that when viewed in the light most favorable to the Government, it

 8
was sufficient for a reasonable jury to conclude beyond a reasonable

doubt that Leigh knew or was at least willfully blind to her transporting heroin in her luggage.

Actual knowledge is not always essential for securing a conviction

on an importation count; it is sufficient to show that the defendant

was willfully blind to the contents of her belongings. A defendant is

willfully blind when she purposefully and deliberately contrives to

avoid learning all the facts. United States v. Campbell, 977 F.2d 854,

857 (4th Cir. 1992). Albeit, in Leigh's case, the Government had no

direct evidence that Leigh had actual knowledge of the heroin, but the

evidence was particularly compelling that at a minimum Leigh should

have known the suitcases contained heroin. Trial testimony revealed

Leigh to be a highly successful narcotics courier. Additionally, Leigh

demonstrated a deliberate ignorance as to the source of her boyfriend's money, how he acquired the large sums of cash he used in

financing her West African trips, and what he actually did for a living.

There was overwhelming evidence to support the jury's finding that

Leigh was willfully blind to her boyfriend's drug trafficking and her

role therein. In sum, we hold that the district court did not err in denying Leigh's motion for acquittal.

D.

Finally, Leigh contends that the district court should have sentenced her within the guidelines range, pursuant to 18 U.S.C. § 3553(f),2

which requires the district court to ignore the applicable statutory

mandatory minimums if the defendant meets all five of the following

criteria:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

_________________________________________________________________

2 We note that Leigh assigns error under § 3553(f)'s companion Guideline provision § 5C1.2 and references both sections interchangeably. For

purposes of uniformity and clarity, we cite only the statutory provision

§ 3553(f).

 9
(2) the defendant did not use violence or credible threats

of violence or possess a firearm or other dangerous

weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily

injury to any person;

(4) the defendant was not an organizer, leader, manager,

or supervisor or others in the offense, as determined

under the sentencing guidelines and was not engaged

in a continuing criminal enterprise, as defined in 21

U.S.C. § 848; and

(5) not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government

all information and evidence the defendant has concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or

plan, but the fact that the defendant has no relevant or

useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant

has complied with this requirement.

18 U.S.C. § 3553(f) (emphasis added). Section 3553(f), was enacted

as a "safety-valve" provision so that less culpable offenders of 21

U.S.C. § 841, § 844, § 846, § 960, or § 963, might receive lighter sentences reflecting certain mitigating factors, which ordinarily would be

disregarded by the mechanistic application of mandatory minimums.

H.R. Rep. No. 460, 103d Cong., 2d Sess., (1994), 1994 WL 107571

(1994). Section 3553(f) expressly precludes the sentencing court from

disregarding the mandatory minimum sentence of 21 U.S.C. § 841 if

the sentencing court finds that the defendant fails to meet even one

of the five criteria. The district court, finding that Leigh failed to meet

the fifth requirement, refused to sentence her below the mandatory

minimum of one-hundred twenty months. Leigh contends that, contrary to the district court's finding, she met § 3553(f)'s fifth requirement.

 10
Generally, we are adamant in our position that absent the district

court's mistaken belief that it lacked the authority to depart from the

guidelines, we will not review the factual findings underlying its

refusal to depart. See United States v. Underwood, 970 F.2d 1136,

1338 (4th Cir. 1992); United States v. Bayerle , 898 F.2d 28, 30 (4th

Cir.), cert. denied, 498 U.S. 819 (1990). Yet, it is unclear to us

whether the principle of non-review announced in Underwood and

Bayerle applies to a district court's decision not to sentence below the

statutory mandatory minimum pursuant to 18 U.S.C.§ 3553(f). We

proceed, nonetheless, to the merits of Leigh's claim because it is evident that she was not entitled to the relief sought.

Section 3553(f)(5), in particular, requires the defendant to truthfully disclose all information regarding his offense or conviction as

well as the acts of co-conspirators when the offense is a conspiracy

or joint activity. United States v. Acosta-Olivas, 71 F.3d 375, 378

(10th Cir. 1995). Whether a defendant, therefore, has truthfully provided the Government with all of the information and evidence

known to him regarding the offense or offenses that were part of the

same course of conduct or of a common scheme or plan is a question

of fact that we review for clear error. See, United States v. Rodriguez,

69 F.3d 136, 144 (1995) (holding the district court's determination

that a defendant is ineligible for a [§ 3553 (f)] reduction, ought to be

governed by the clearly erroneous standard). To determine whether a

defendant has cooperated completely and truthfully with the government, the sentencing court must collectively assess all statements the

defendant made to the government--whether they be truthful statements, partial statements, false statements, or omissions. Above all,

the sentencing court must determine whether the defendant failed to

provide all information likely to be in her possession.

When denying Leigh's motion to be sentenced pursuant to

§ 3553(f), the district court focused on Leigh's credibility and truthfulness in divulging information. In so doing, it evaluated Leigh's

capacity for cooperating with the government as well as her demeanor

during trial. The evidence of record reveals that despite her protestations otherwise, Leigh failed to thoroughly cooperate during her

lengthy interview with government agents. Leigh continued to provide false testimony about her numerous trips to West Africa and her

prior conviction for lying to a police officer. She persisted in denying

 11
her involvement in the heroin trafficking organization. And she failed

to provide any detailed information regarding her co-conspirators--in

particular, information regarding the whereabouts of her boyfriend

and his role in the smuggling organization. During sentencing the district court specifically stated:

that [Leigh's] statement that she didn't know what was in

the suitcase was unbelievable at trial. And the jury probably

didn't believe it. Given the circumstances of the offense and

her behavior at Customs, I -- I mean I thought her testimony was unbelievable. I believe the jury found that too, or

they would not have convicted her. And I'm not sure that

truthful answers wouldn't be of more assistance to the Government than her maintenance of her position.

Thus, having viewed Leigh's testimony and demeanor at trial, having

heard the extent to which she failed to cooperate with the government,

and having known of her past history, the district court was in the best

position to make the factual determination that Leigh did not meet

§ 3553(f)'s fifth requirement. We do not find that the district court

clearly erred in its refusal to sentence Leigh according to § 3553(f).

III.

For the foregoing reasons, Leigh's conviction and sentence are

AFFIRMED.

 12