Opinion
EP-99-CR-1406-DB.
April, 2000.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On March 9, 2000, the Court held a bench trial in the above-captioned cause. Defendant Maria de los Angeles Gomez was present and represented by counsel. After questioning by the Court, Defendant indicated that she understood her rights and knowingly waived her right to trial by jury.
After hearing the evidence, the Court has determined that Defendant is not guilty of violating 21 U.S.C. § 952(a) 960(a)(1) (importation of marijuana) and guilty beyond a reasonable doubt of violating 21 U.S.C. § 841(a)(1) (possession of marijuana). In accordance with Federal Rule of Criminal Procedure 23(c), the Court enters these Findings of Fact and Conclusions of Law with respect to Defendant.
PROCEDURAL BACKGROUND
By a two-count Indictment filed on September 22, 1999, Defendant was charged with knowingly and intentionally importing into the United States a quantity of marijuana in violation 21 U.S.C. § 952(a) and 960(a)(1) ("Count One") and knowingly and intentionally possessing with intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1) ("Count Two").
FINDINGS OF FACT
Defendant is a citizen of the Republic of Mexico and a permanent resident of the United States, residing in El Paso, Texas.
On September 9, 1999, at approximately 10:30 p.m., Defendant approached the United States Border Patrol ("USBP") secondary checkpoint in Desert Haven, Texas. The checkpoint is located in the interior of the United States on highway 62/180, approximately one mile east of the El Paso city limit and a considerable distance from the United States-Mexico border. She was driving a white 1995 Nissan Sentra bearing Texas licence plates. Defendant, the sole occupant of the car, came to a stop in the primary inspection area and USBP Agent Arturo Arzate ("Arzate") approached the vehicle on the passenger side. Defendant handed Arzate a valid resident alien card, at which time Arzate noticed that Defendant's hand was visibly shaking and Defendant appeared nervous.
Defendant stated that she was on her way to Carlsbad, New Mexico, to visit her sister, one Patricia Barrazza, who was ill. Arzate asked Defendant if there was anything in the car. In response, Defendant stated that there were two bags in the trunk that a man she did not know asked her to deliver to an address in Roswell, New Mexico. She stated that the wheelchair-bound man approached her at a nearby gasoline station and asked her to deliver the bags, which he said contained baby clothes, because he was undocumented and could not go himself. Arzate directed Defendant into the secondary inspection area.
In secondary, Border Patrol Agent William Upton ("Upton"), Arzate's partner, asked Defendant to get out of the car while Arzate retrieved Upton's canine inspection dog, Bill. Upton directed Bill to inspect the exterior of the vehicle, sniffing for persons or drugs. Meanwhile, Upton stood back next to Defendant, who was visibly shaking and quivering. When Bill alerted to the car's trunk, Upton retrieved the car's keys from the ignition and opened the trunk. As he opened the trunk, Upton heard Defendant say, "oh my god."
Inside the trunk, the agents found two duffel bags and nothing else. Bill jumped into the trunk and immediately alerted to the two bags. Inside the bags, the agents found multiple bundles of a green leafy substance individually wrapped in cellophane. The substance positively field-tested as marijuana. Eventually, seventeen packages were inventoried, divided almost equally between the two duffel bags, yielding approximately 101.52 pounds of marijuana in total.
At this point, Upton arrested Defendant and escorted her to a trailer for questioning. Arzate informed Defendant of her Miranda rights, which Defendant waived. Defendant repeated the story told previously regarding the man who asked her to transport the duffel bags. This time, however, Defendant stated that the man walked with crutches. She stated that the man offered her twenty dollars toward gasoline for the trip, but she refused the money. Defendant produced a small scrap of paper bearing only the following hand-written information: "Sra Quezada, Sacramento #1912, tel 780 9092, Roswell." Defendant stated that the man gave her that paper and asked her to deliver the bags to the listed address. She further stated that when she informed the man that she was not going to Roswell, he asked Defendant to call the number listed and someone would come to retrieve the bags at her destination. Defendant further told Arzate that she had been in Ciudad Juarez, Mexico, earlier that day. She stated that she went to Juarez to shop and pick up her baby-sitter in the morning and returned to the United States at approximately 4:00 p.m. through the Zaragoza Port of Entry.
Arzate contacted Special Agent Angie Gurrola ("Gurrola") of the Drug Enforcement Agency ("DEA"), who was the "duty agent" that night. Gurrola and another agent arrived at the Desert Haven checkpoint at approximately 12:30 a.m. and took custody of Defendant and the marijuana. Gurrola informed Defendant of her Miranda rights and Defendant again waived those rights and agreed to give a statement. Defendant repeated the story regarding the man at the gasoline station. Defendant described the man as approximately sixty years old, with grey and white hair. When Gurrola asked Defendant how a sixty-year-old man with a cast on his leg and using crutches to walk could carry two duffel bags weighing approximately one-hundred pounds, Defendant stated that the man's grandson was nearby and carried the bags for him.
When asked, Defendant could not state the name of the gas station where these events took place except to note that it was the last gas station on the highway before reaching the checkpoint. Gurrola drove Defendant to an Exxon gas station nearby, which Defendant identified as the place she stopped for gas. Defendant pointed out the spot where she filled her tank and the man approached her. Later, Gurrola obtained a surveillance videotape from the Exxon station covering the period during which Defendant stated she stopped there. The videotape does not show Defendant or an old man on crutches.
At some point, a seventy-two hour "lane check" of vehicles crossing into the United States from Mexico was conducted. According to the check, Defendant's vehicle crossed into the United States through the Ysleta Port of Entry at approximately 7:51 p.m. that evening.
Sometime after Defendant's arrest, samples of the green leafy substance were sent to be analyzed by a DEA chemist in Dallas, Texas, to determine whether the substance Defendant possessed was in fact marijuana. The DEA Forensic Chemist found that those samples did in fact contain marijuana.
CONCLUSIONS OF LAW
Count One of the Indictment in this cause charges Defendant with violating 21 U.S.C. § 952(a) and 960(a)(1), which make it a crime for anyone knowingly and intentionally to import a controlled substance. Marijuana is a controlled substance within the meaning of those statutes. For the Court to find Defendant Maria de los Angeles Gomez guilty of this crime, the Government must prove each of the following beyond a reasonable doubt:
(1) that Defendant knowingly and intentionally brought a quantity of marijuana into the United States from a place outside the United States; and
(2) that Defendant knew that the substance she was bringing into the United States was a controlled substance.
The Court finds that the Government has not proven beyond a reasonable doubt that Defendant knowingly and intentionally brought a quantity of marijuana into the United States from a place outside the United States and that Defendant knew that the substance she was bringing into the United States was a controlled substance.
Count Two of the Indictment in this cause charges Defendant with violating 21 U.S.C. § 841(a)(1), which makes it a crime for anyone knowingly and intentionally to possess with intent to distribute a quantity of marijuana. For the Court to find Defendant Maria de los Angeles Gomez guilty of this crime, the Government must prove each of the following beyond a reasonable doubt:
(1) that Defendant knowingly possessed a quantity of marijuana;
(2) that the substance Defendant possessed was in fact marijuana; and
(3) that Defendant possessed the substance with the intent to distribute it.
The Court finds that the Government has proven beyond a reasonable doubt that Defendant knowingly and intentionally possessed a quantity of marijuana; that the substance Defendant possessed was actually marijuana; and that Defendant possessed the substance with the intent to distribute it.
Accordingly, the Court HEREBY FINDS Defendant Maria de los Angeles Gomez NOT GUILTY of the crime charged in Count One of the Indictment in this cause.
The Court FURTHER FINDS Defendant Maria de los Angeles Gomez GUILTY BEYOND A REASONABLE DOUBT of the crime charged in Count Two of the Indictment in this cause.