Of the Southern District of New York, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2781

UNITED STATES OF AMERICA,

Appellee,

v.

JUSTINA JACQUELINE AYALA-TAPIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch, Circuit Judge,

and Keenan, Senior District Judge. *

Elfrick Mendez-Morales, by appointment of the court, on brief

for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, and Rosa Emilia Rodriguez-Velez, United States

Attorney, on brief for appellee.

March 19, 2008
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BOUDIN, Chief Judge. Justina Ayala-Tapia traveled by

overnight ferry from the Dominican Republic to Puerto Rico,

arriving at the Mayaguez port on February 1, 2006. Customs

officials searched her luggage after an x-ray scan raised their

suspicions; they discovered four heavily wrapped packages which,

according to a field test and a drug-sniffing dog, contained

narcotics. Later testing confirmed the presence of approximately

3.5 kilograms of heroin.

Ayala told the officials that the packages were given to

her by a friend in the Dominican Republic, to be delivered to a man

named Miguel waiting outside the port. She agreed to participate

in a controlled delivery but Miguel, perhaps tipped off by the

delay (or perhaps a fictitious character), did not show up.

Thereafter, Ayala was indicted on one count of importing, and one

count of possessing with intent to distribute, the controlled

substance heroin. 21 U.S.C. §§ 841(a)(1), 952(a) (2000). 

She went to trial in Puerto Rico's federal district court

in April 2006. The government called the customs officials who had

searched Ayala's bag, discovered the packages and conducted the

field test; the parties stipulated to the weight and purity of the

heroin. The government also presented expert evidence from a DEA

agent about the street value of the seized heroin and the methods

used to smuggle drugs onto the island.
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Ayala testified as the only witness in her defense. She

did not dispute that she had possessed the heroin but denied that

she knew the packages contained the drug. She said that a friend

named Ivelisse had asked her to bring the packages to Ivelisse's

brother Miguel in Puerto Rico. Ayala claimed that she believed the

packages to contain coffee and flour, possibly for use in Miguel's

bakery. She was to meet him outside the port and, in exchange, he

would give her a ride to the San Juan airport, from where she would

fly back to her residence in New York.

Ayala explained that she would frequently travel to the

Dominican Republic via Puerto Rico because her son lived in the

former and her mother in the latter. She also claimed to earn a

living by buying clothing in New York and selling it in the

Dominican Republic. She supplied some further information about

Ivelisse but not about how to contact her and said that she had no

further information about Miguel or how to reach him.

The jury returned convictions on both counts. The

district judge denied Ayala's motion for judgment of acquittal,

Fed. R. Crim. P. 29, and on November 2, 2006, sentenced her to the

statutory minimum (given the drug quantity) of 120 months in

prison. 21 U.S.C. § 841(b)(1)(A). The judge rejected Ayala's

request to apply the "safety valve" exception to the mandatory

minimum, 18 U.S.C. § 3553(f) (2000); U.S.S.G. § 5C1.2; the judge
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found that Ayala had not met the requirement of truthfully telling

the government all she knew about the drug venture.

On appeal, Ayala first contests the sufficiency of the

evidence to support her convictions. Only one element of the

crimes--whether Ayala possessed the drugs "knowingly"--is at issue;

if Ayala knowingly possessed the heroin, the large quantity itself

provides the basis for an inference of intent to distribute.

United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993). If

she truly believed that the packages contained flour or coffee,

then she committed no crime. We consider de novo whether the

government presented evidence from which a rational jury could

conclude beyond a reasonable doubt that Ayala knew she was carrying

drugs. United States v. Mateos-Sanchez, 864 F.2d 232, 238 (1st

Cir. 1988). 

As is common in drug courier prosecutions, there was no

direct evidence of what Ayala knew; whether the jury could

reasonably infer knowledge depends, as common sense would suggest,

on the surrounding facts and circumstances. Compare United States

v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.) ("[M]ere possession of

a substantial quantity of drugs may be sufficient to support an

inference of knowing possession."), cert. denied, 498 U.S. 961

(1990), with United States v. Jackson, 55 F.3d 1219, 1226 (6th

Cir.) (if drugs are found in "hidden compartment" then additional

evidence is necessary), cert. denied, 516 U.S. 926 (1995).
The opposite inference is also possible, see United States v. 1

Del Aguila-Reyes, 722 F.2d 155, 158 (5th Cir. 1983) (Rubin, J.,

dissenting) (noting that "dupes who are unaware that they carry

valuable cargo are less likely to steal it"); but the jury has

leeway in considering which inference is more persuasive on given

facts.

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The government points to a number of factors that make

the finding of guilty knowledge plausible in this case. As the

government expert testified at trial, the drugs had a very

substantial street value--approximately $300,000--and drug

suppliers might be unwilling to entrust such valuable cargo to an

ignorant courier, fearing that she might be insufficiently

motivated to ensure that it safely reaches its destination. We

have acknowledged that this is a reasonable inference. United

States v. Thomas, 467 F.3d 49, 54 (1st Cir. 2006) (smugglers opt

"for trusted and close associates . . . who are aware of the high

stakes"), cert. denied, 127 S. Ct. 1850 (2007); see also United

States v. Rodriguez, 192 F.3d 946, 950 (10th Cir. 1999) (collecting

cases).1

Ayala acknowledged placing the packages in her luggage;

this is not a case of a hidden compartment or the professed

surprise discovery of items packed by another. See United States

v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990). The heavy

wrapping made it impossible to tell what was inside, but that could

easily cut against Ayala's story in the jury's mind; why would
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flour or coffee be packaged in such a strange fashion? Here, it is

the circumstances of this case that work against the defendant.

Further, Ayala testified at trial; and "the jury is

permitted to draw an inference of guilt from a deliberate false

alibi." United States v. Llinas, 373 F.3d 26, 37 (1st Cir. 2004)

(concurring opinion). The prosecutor's cross examination gave the

jury a series of reasons to believe that Ayala was lying:

 ! she had never met Miguel before but

planned to meet him outside the port and

accept a ride to San Juan;

 ! she did not know Miguel's last name

or phone number, or Ivelisse's phone number;

 ! she initially claimed to have told

the customs officials that the packages

contained coffee, but later admitted that she

had told them it was flour for baking cakes;

and

 ! her explanation for her roundabout

route between the Dominican Republic and New

York was attacked as implausible for a variety

of reasons.

The jury might also have been skeptical that anyone would

bother to transport a few kilograms of coffee or flour to Puerto

Rico, especially in light of that island's own famous, historic

coffee industry. See Dooley v. United States, 182 U.S. 222, 236

(1901) ("[Puerto Rico] had no manufactures or markets of its own,

and was dependent upon the markets of other countries for the sale

of her productions of coffee, sugar and tobacco.").
The other requirements are that the defendant not (i) have 2

more than one criminal history point; (ii) have engaged in violence

or possessed a gun; (iii) have participated in activity leading to

death or serious injury; or (iv) have been a leader of the criminal

enterprise. 18 U.S.C. § 3553(f)(1)-(4).

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The jury is entitled to evaluate the witnesses, including

Ayala, and could fairly have concluded that she lacked credibility.

From that determination, especially in combination with the

circumstantial evidence described above, an inference of guilt and

a conviction may follow. Thomas, 467 F.3d at 55 ("Ultimately, it

is [defendant's] own trial testimony that seals her fate on

appeal."); Llinas, 373 F.3d at 37 (concurring opinion).

The same reasoning largely resolves Ayala's sentencing

challenge as well. Under the so-called safety valve provision, 18

U.S.C. § 3553(f), defendants convicted of certain drug crimes who

meet five requirements are to be sentenced "without regard to any

statutory minimum sentence." Id. Ayala might have been a

candidate for this leniency but the court found that she failed the

fifth prong, i.e. the requirement that "the defendant has

truthfully provided to the Government all information and evidence

the defendant has concerning the offense." Id. § 3553(f)(5).2

Ayala did offer to tell the government what she knew, but

indicated that she would simply repeat her trial testimony. Given

that the jury had necessarily disbelieved Ayala's story, there was

some speculation during the sentencing hearing as to whether the

district judge was required to find that Ayala had failed the fifth
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prong of the safety valve statute. Ultimately, the court

explicitly rested on its own, independent finding that Ayala's

story was not true, and we review that factual determination only

for clear error. United States v. Stark, 499 F.3d 72, 80 (1st Cir.

2007). 

For the same reasons that the jury could reasonably have

disbelieved Ayala's testimony when assessing her guilt, the

district court could reasonably reach the same conclusion in its

safety valve determination. United States v. Marquez, 280 F.3d 19,

24-25 (1st Cir. 2002). Ayala emphasizes that she cooperated with

the government by agreeing, at the time of the arrest, to

participate in a controlled delivery to Miguel. But the statute

calls for a particular form of cooperation--truthful disclosure--

and the judge permissibly concluded that Ayala had not complied.

Affirmed.