United States v. Andes-Mar Pereira Barbosa, 906 F.2d 1366 (9th Cir. 1990). · Go Syfert
United States v. Andes-Mar Pereira Barbosa, 906 F.2d 1366 (9th Cir. 1990). Cases Citing This Book View Copy Cite
“mere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics”
182 citation events (32 in the last 25 years) across 14 distinct courts.
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discussed Cited as authority (verbatim quote) United States v. Elishay Banks
9th Cir. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
ere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics.
discussed Cited as authority (verbatim quote) United States v. Alfredo Davila-Escovedo
9th Cir. · 1994 · signal: see · quote attribution · 1 verbatim quote · confidence high
mere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics
cited Cited as authority (rule) United States v. Allen Gorion
9th Cir. · 2018 · confidence medium
United States v. Lopez, 477 F.3d 1110, 1113 (9th Cir. 2007); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990).
discussed Cited as authority (rule) United States v. Hector Carreon
9th Cir. · 2015 · confidence medium
“A conviction is supported by sufficient evidence if, ‘viewing the evidence in the light most favorable to the government, a rational trier of fact could conclude that the evidence was adequate to prove guilt beyond a reasonable doubt.’ ” United States v. Whittemore, 776 F.3d 1074, 1078 (9th Cir.2015) (quoting United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990)).
discussed Cited as authority (rule) State Of Washington v. Carla Anna Ford
Wash. Ct. App. · 2015 · confidence medium
Demeanor evidence includes, for example, the admission of evidence concerning a defendant's "slurr[ed] speech," Muniz. 496 U.S. at 592 , "apparent nervousness," United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990), or a defendant's demeanor during a polygraph test, even though the results of the test may not be admissible, Rothaeb v. United States. 789 F.2d 647, 651 (8th Cir. 1986).
discussed Cited as authority (rule) United States v. F. Whittemore
9th Cir. · 2015 · confidence medium
A conviction is supported by sufficient evidence if, “viewing the evidence in the light most favorable to the government, a rational trier of fact could conclude that the evidence was adequate to prove guilt beyond a reasonable doubt.” United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Medina-Mendoza
7th Cir. · 2013 · confidence medium
See United States v. Dinga, 609 F.3d 904, 909 (7th Cir.2010); United States v. Griffin, 310 F.3d 1017, 1021, 1024 (7th Cir.2002); United States v. Sisti, 91 F.3d 305, 313 (2d Cir.1996); United States v. Onumonu, 999 F.2d 43, 46-47 (2d Cir.1993); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.1990). “[Sjuch findings do not require directly contradictory testimony but may spring from a solid foundation of circumstantial evidence.” United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.1991).
discussed Cited as authority (rule) United States v. Jose Medina-Mendoza
7th Cir. · 2013 · confidence medium
See United States v. Dinga, 609 F.3d 904, 909 (7th Cir. 2010); United States v. Griffin, 310 F.3d 1017, 1021, 1024 (7th Cir. 2002); United States v. Sisti, 91 F.3d 305, 313 (2d Cir. 1996); United States v. Onumonu, 999 F.2d 43 , 46–47 (2d Cir. 1993); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir. 1990). “[S]uch findings do not require directly contradictory testimony but may spring from a solid foundation of circumstantial evidence.” United States v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).
discussed Cited as authority (rule) United States v. Ahearn
9th Cir. · 2009 · confidence medium
See United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir.2003) (sufficiency of the evidence generally); Ramirez-Robles, 386 F.3d at 1241 (co-conspirator testimony); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990) (possession of a large quantity of narcotics and nervousness).
discussed Cited as authority (rule) United States v. Ahearn
9th Cir. · 2009 · confidence medium
See United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir.2003) (sufficiency of the evidence generally); Ramirez-Robles, 386 F.3d at 1241 (co-conspirator testimony); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990) (possession of a large quantity of narcotics and nervousness).
discussed Cited as authority (rule) United States v. Conchas (2×) also: Cited "see, e.g."
9th Cir. · 2008 · confidence medium
United States v. Quintero-Barraza, 78 F.3d 1344, 1352 (9th Cir.1995) (inconsistent statements); Barbosa, 906 F.2d at 1368 (nervousness).
discussed Cited as authority (rule) State v. Teagle (2×)
Ariz. Ct. App. · 2007 · confidence medium
County of Coconino, 196 Ariz. 79, 84, ¶ 25 , 993 P.2d 1043, 1048 (App.1999) ("[T]he presence of the drugs in the trunk of the car the Defendant was driving was sufficient, in and of itself, to support a conclusion beyond a reasonable doubt that he was knowingly transporting the drugs."); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990) ("[M]ere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics."); United States v. Murrieta-Bejarano, 552 F.2d 1323, 1324 (9th Cir.1977) (jury could infer driver a…
discussed Cited as authority (rule) United States v. Mora-Arciga
9th Cir. · 2002 · confidence medium
See United States v. Tisor, 96 F.3d 370, 379 (9th Cir.1996) (setting forth legal standard for reviewing denial of Rule 29 motion for acquittal); United States v. Davila-Escovedo, 36 F.3d 840, 843 (9th Cir.1994) (explaining that jury may infer both knowledge of possession and intent to distribute from quantity and value of drug possessed, and may infer knowledge of possession from fact that appellant was driver and sole occupant of vehicle containing drugs); United States v. Barbosa, 906 F.2d 1366, 1368-1369 (9th Cir.1990) (allowing inference of knowledge of possession from defendant’s appare…
discussed Cited as authority (rule) United States v. Ted Stevenson Angwin and Christine Khamis (2×)
9th Cir. · 2001 · confidence medium
Ed. 2d 237 , 120 S. Ct. 2203 (2000); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990) (signs of nervousness); United States v. Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) (vehicle with contraband); United States v. Haro-Portillo, 531 F.2d 962, 963 (9th Cir. 1976) (lying). 3 These elements are not meant to be three discrete components, each of which must be fully satisfied for evidence to qualify under Rule 406.
discussed Cited as authority (rule) United States v. Ramon Velarde-Gomez (2×)
9th Cir. · 2001 · confidence medium
We agree that the government may offer evidence of demeanor, see United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990), and may also offer physical evidence, see Schmerber v. California, 384 U.S. 757, 764 (1966).
discussed Cited as authority (rule) United States v. Ted Stevenson Angwin and Christine Khamis (2×)
9th Cir. · 2001 · confidence medium
See United States v. Hernandez-Franco, 189 F.3d 1151, 1155 (9th Cir. 1999) (holding that guilty intent can be inferred from the defendant's conduct and other circumstantial evidence), cert. denied, 120 S.Ct. 2203 (2000); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990) (signs of nervousness); United States v. Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) (vehicle with contraband); United States v. Haro-Portillo , 531 F.2d 962, 963 (9th Cir. 1976) (lying). 3 These elements are not meant to be three discrete components, each of which must be fully satisfied for evidence to qualify u…
discussed Cited as authority (rule) United States v. Nasseri (2×)
9th Cir. · 2001 · confidence medium
See, e.g., United States v. Collins, 764 F.2d 647, 652 (9th Cir.1985) (holding that defendant’s possession of a shipment containing eight and one-half pounds of cocaine was sufficient to support the jury’s finding of actual knowledge); United States v. Walitwarangkul, 808 F.2d 1352, 1354 (9th Cir.1987) (holding that in addition to circumstantial evidence of guilt, possession of 1386 grams of heroin was sufficient to support a finding that one knowingly possessed the heroin); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990) (holding that in addition to other circumstantial evide…
cited Cited as authority (rule) United States v. Morales
9th Cir. · 2001 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Gorbea
1st Cir. · 2000 · signal: cf. · confidence medium
Cf. United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990) (noting that jury could infer guilty knowledge of contents of luggage, in part, from discrepancies in stories defendant told to different federal agents).
discussed Cited as authority (rule) United States v. Jose Ramon Hernandez, United States of America v. Douglas Gorbea Del-Valle
1st Cir. · 2000 · signal: cf. · confidence medium
Cf. United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990) (noting that jury could infer guilty knowledge of contents of luggage, in part, from discrepancies in stories defendant told to different federal agents).
discussed Cited as authority (rule) Tuan Van Tran v. Gary Lindsey, Warden Salinas Valley State Prisons State of California
9th Cir. · 2000 · confidence medium
See, e.g., Washington Public Utilities Group v. United States District Court, 843 F.2d 319 , 325 (9th Cir.1988) (applying “firm conviction” test to determine if legal judgment was clearly erroneous for purpose of mandamus action); In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982) (same); Topanga Press v. City of Los Angeles, 989 F.2d 1524 , 1527 (9th Cir.1993) (reviewing grant of preliminary injunction under firm conviction test) United States v. Nelson, 137 F.3d 1094, 1106 (9th Cir.1998) (analyzing motion for mistrial under firm conviction test where result turned on q…
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Francisco H. GARCIA Sr., Defendant-Appellant
9th Cir. · 1998 · confidence medium
Prior to Dunnigan , we held in United States v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir.1990), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990), that the district court was not required to make specific findings as to specific portions of a defendant’s testimony it believed to be false.
discussed Cited as authority (rule) United States v. Jose Loza-Romero, United States of America v. Ruben Contreras-Rodriguez
9th Cir. · 1997 · confidence medium
See e.g., United States v. Davila-Escovedo, 36 F.3d 840, 843 (9th Cir.1994) (proper to infer knowledge where defendant driving truck full of hidden drugs); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990) (proper to infer knowledge where defendant carrying chess sets full of cocaine).
discussed Cited as authority (rule) United States v. Joseph Ingram
9th Cir. · 1997 · confidence medium
We have held that this note "simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction." United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.1990) (citation omitted).
discussed Cited as authority (rule) United States v. Miguel Reyes Magallanes
9th Cir. · 1996 · confidence medium
The district judge's conclusion merits due deference because of the district judge's opportunity to observe Magallanes' demeanor and otherwise to assess his credibility. 18 U.S.C. § 3742 (e); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.1990). 2 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
discussed Cited as authority (rule) United States v. Kenneth Joel Novak, United States of America v. Christopher Ray Wittman
9th Cir. · 1996 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 961 (1990). 15 Before the court can impose the two-level increase, however, it "must find that [the defendant] gave (1) false testimony, (2) on a material matter, (3) with willful intent." United States v. Robinson, 63 F.3d 889, 892 (9th Cir.1995) (citation omitted).
discussed Cited as authority (rule) United States v. Roberto Charles Ysassi, Jr.
9th Cir. · 1996 · confidence medium
United States v. Ancheta, 38 F.3d 1114, 1117 (9th Cir.1994); United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.), cert. denied, 498 U.S. 961 (1990). 14 The United States Sentencing Commission, Guidelines Manual, § 3C1.1 provides: 15 If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels. 16 The commentary to section 3C1.1 includes the commission of perjury as an obstruction of justice.
discussed Cited as authority (rule) United States v. Johnie D. Ford
10th Cir. · 1996 · confidence medium
The district court makes its factual determinations under a preponderance of the evidence standard, United States v. Beaulieu, 900 F.2d 1537, 1540 (10th Cir.), cert. denied, 497 U.S. 1009 (1990), and perjury may be proved through circumstantial evidence, United States v. Onumonu, 999 F.2d 43, 46 (2d Cir.1993); United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.1991); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 961 (1990).
discussed Cited as authority (rule) United States v. George Paul Salemo (2×)
9th Cir. · 1996 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.), cert. denied, 498 U.S. 961 (1990). 53 Section 3C1.1 requires the district court to increase the offense level by two levels, "[i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense...." U.S.S.G. § 3C1.1.
discussed Cited as authority (rule) United States v. Rafael Lorea
9th Cir. · 1995 · confidence medium
See United States v. Perkins, 937 F.2d 1397, 1404 (9th Cir.1991); United States v. Ramirez-Jiminez, 967 F.2d 1321 (9th Cir.1992); United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert. denied, 498 U.S. 961 (1990). 29 This circuit has reversed convictions for aiding and abetting possession of drugs in cases in which the government produced more substantial evidence against the defendant than exists in appellant's case.
discussed Cited as authority (rule) United States v. Ramon Cancio-German (2×) also: Cited "see"
9th Cir. · 1995 · confidence medium
Davila-Escovedo, 36 F.3d at 843 ; United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert. denied, 498 U.S. 961 (1990). 6 In addition, Cancio-German gave conflicting statements to authorities.
cited Cited as authority (rule) United States v. Johnny Harris, Jr.
9th Cir. · 1995 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert. denied, 498 U.S. 961 (1990).
discussed Cited as authority (rule) United States v. Tony Siripatrapa
9th Cir. · 1995 · confidence medium
The following evidence was introduced at trial: (1) Siripatrapa frequently traveled to Thailand, a known source country for heroin; (2) He stayed in a hotel in Los Angeles for a few days and paid his bill in cash; (3) He made numerous expensive phone calls to the source of the drugs in Thailand; (4) He left a note in the hotel room detailing plans for the meeting in New York; (5) He appeared nervous to the DEA agents questioning him at the airport; (6) This nervousness changed to extreme nervousness when the agents began to question him about the pictures; and (7) His explanation for the prese…
discussed Cited as authority (rule) United States v. Von Dale Massey, Sr., United States of America v. Sandra Wilkins, United States of America v. Jack Z. Wilkins
10th Cir. · 1995 · confidence medium
Cir. 1992) (in order to impose enhancement, the elements of perjury “must not only be clearly established, ... but also must be sufficiently far-reaching as to impose some incremental burdens on the government, either in investigation or in proof, which would not have been necessary but for the perjury”); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.) (rejecting suggestion that "a district court make specific findings as to those portions of a defendant’s testimony it believes to have been falsified"), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990).
discussed Cited as authority (rule) United States v. Vernon A. Montague
D.C. Cir. · 1994 · confidence medium
See United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st Cir.1991) (finding that the cautionary note “simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction”) (internal quotations omitted); United States v. Barba rosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990) (same); United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989) (same).
cited Cited as authority (rule) United States v. George Ancheta
9th Cir. · 1994 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990).
discussed Cited as authority (rule) United States v. Michael H. Weitzenhoff Thomas W. Mariani (2×)
9th Cir. · 1994 · confidence medium
United States v. Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1117 , 122 L.Ed.2d 445 (1993); see also United States v. Torres-Rodriguez, 930 F.2d 1375, 1389-90 (9th Cir.1991); United States v. Barbosa, 906 F.2d 1366, 1369-40 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990). "[A] defendant's right to testify does not include a right to commit perjury." Dunnigan, --- U.S. at ----, 113 S.Ct. at 1117 .
cited Cited as authority (rule) United States v. Jesus Alonso Vizcarra
9th Cir. · 1994 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.), cert. denied, 498 U.S. 961 (1990).
discussed Cited as authority (rule) United States v. Martin Miranda-Flores
9th Cir. · 1994 · confidence medium
Sec. 1291 , and we affirm. 3 There is sufficient evidence to support a conviction if, " 'reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 4 "Circumstantial evidence may prove knowledge or intent in cases involving possession or importation of large quantities of narcotics." United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert. denied, 498 U.…
discussed Cited as authority (rule) United States v. Alfredo Valenzuela-Chairez
9th Cir. · 1994 · confidence medium
First, 700 pounds of cocaine were discovered in the trunk. "[M]ere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics." United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990).
discussed Cited as authority (rule) Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Publication Are Not Precedential and Should Not Be Cited Except When Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel. United States of America v. Renee Lynn White, AKA Renee Lynn Vickery, United States of America v. Robert Vickery, United States of America v. Mark Douglas Pirtle
9th Cir. · 1993 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 112 (1990). 29 Pirtle also argues that his sentence was improperly enhanced for obstruction of justice pursuant to section 3C1.1.
cited Cited as authority (rule) United States v. Peter Charles Acuna
9th Cir. · 1993 · confidence medium
United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990).
cited Cited as authority (rule) United States v. David Anthony McGee
9th Cir. · 1993 · confidence medium
U.S. v. Barbarosa, 906 F.2d 1366, 1369 (9th Cir.1990), cert. denied, 498 U.S. 961 (1990).
discussed Cited as authority (rule) United States v. McKean (2×)
M.D. Penn. · 1993 · confidence medium
See United States v. Batista-Polanco, 927 F.2d 14, 22 (1st Cir.1991); United States v. Matos, 907 F.2d 274, 276 (2d Cir.1990); United States v. Colletti, 984 F.2d 1339, 1347-48 (3d Cir.1992); United States v. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.), cert. denied, 493 U.S. 899 , 110 S.Ct. 255 , 107 L.Ed.2d 204 (1989); United States v. Contreras, 937 F.2d 1191, 1194-1195 (7th Cir.1991); United States v. Wagner, 884 F.2d 1090, 1098-1099 (8th Cir.1989), cert. denied, 494 U.S. 1088 , 110 S.Ct. 1829 , 108 L.Ed.2d 958 (1990); United States v. Barbosa, 906 F.2d 1366, 1369-1370 (9th Cir.), cert. d…
discussed Cited as authority (rule) United States v. Julio G., United States of America v. Manuel C.
9th Cir. · 1993 · confidence medium
We have also held that "mere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics." United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert. denied, 498 U.S. 961 (1990).
examined Cited as authority (rule) United States v. Christopher Arvizu (3×) also: Cited "see"
9th Cir. · 1993 · confidence medium
Sec. 1291 and affirm. 3 "In determining whether the evidence was sufficient to support ... [Arvizu's] convictions, we must determine whether, after viewing all the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime(s) beyond a reasonable doubt." See United States v. Vasquez-Chan, 978 F.2d 546, 549 (9th Cir.1992). 4 "Circumstantial evidence may prove knowledge or intent in cases involving possession or importation of large quantities of narcotics." United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.), cert.…
discussed Cited as authority (rule) United States v. Michael H. Weitzenhoff and Thomas W. Mariani
9th Cir. · 1993 · confidence medium
United States v. Dunnigan, — U.S. -, -, 113 S.Ct. 1111, 1117 , 122 L.Ed.2d 445 (1993); see also United States v. Torres-Rodriguez, 930 F.2d 1375, 1389-90 (9th Cir.1991); United States v. Barbosa, 906 F.2d 1366, 1369-40 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990). “[A] defendant’s right to testify does not include a right to commit perjury.” Dunnigan , — U.S. at -, 113 S.Ct. at 1117 .
discussed Cited as authority (rule) United States v. David Arias-Villanueva, United States of America v. Carlos Humberto Orantes-Arriaga, United States of America v. Adolfo Plancarte-Raya
9th Cir. · 1993 · confidence medium
The Court determined that the generalized finding 6 at issue was sufficient because it encompassed all the factual predicates for a finding of perjury but noted that "it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding." Id. --- U.S. at ----, 113 S.Ct. at 1117. 105 Initially, we reject the contention that Dunnigan effectively overrules United States v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990), in which we held that the district court was not required to make s…
discussed Cited as authority (rule) United States v. Arias-Villanueva
9th Cir. · 1993 · confidence medium
Initially, we reject the contention that Dunnigan effectively overrules United States v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir.), cert. denied, 498 U.S. 961 , 111 5.Ct. 394, 112 L.Ed.2d 403 (1990), in which we held that the district court was not required to make specific findings as to specific portions of a defendant’s testimony it believes to be false.
discussed Cited as authority (rule) United States v. Ojiabo Ifeanyi Onumonu
2d Cir. · 1993 · confidence medium
Accord United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.1991) (obstruction of justice enhancement for knowingly false testimony does not require directly contradictory testimony; circumstantial evidence is sufficient); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, 498 U.S. 961 , 111 S.Ct. 394 , 112 L.Ed.2d 403 (1990); cf. Gebhard v. United States, 422 F.2d 281, 287-88 (9th Cir.1970) (holding that, to convict for the substantive offense of perjury, the two-witness rule was not applicable and circumstantial evidence can be used where it was alleged that a defendant …
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Andes-Mar Pereira BARBOSA, Defendant-Appellant
89-50274.
Court of Appeals for the Ninth Circuit.
Jun 28, 1990.
906 F.2d 1366
Kevin R. Brehm, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant., Steven D. Clymer, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Goodwin, Tang, Boochever.
Cited by 122 opinions  |  Published
GOODWIN, Chief Judge:

Defendant Andes-Mar Pereira Barbosa appeals his conviction, following a jury trial, for importation of cocaine, in violation of 21 U.S.C. §§ 952(a) and 960, and possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He also challenges the district court’s application of Sentencing Guideline § 3C1.1 to increase his offense level by two points. We affirm.

After arriving in the Los Angeles International Airport on a flight from Rio de Janeiro, Barbosa was stopped by Customs Inspector Charles Carlson and asked to present his luggage for inspection. As a result of the inspection, Barbosa was discovered to be carrying two chessboards, in which an aggregate of six and one-half pounds of cocaine was concealed.

Barbosa denied any knowledge of the drugs, telling Customs Agent Lynn Wood that he had received the chess sets from a man named Felix who asked him to deliver them to someone called Charley. He also admitted having brought three similar chess sets into the U.S. on a previous trip, which he also delivered to Charley, who had been waiting for him outside the Cus[*1368] toms Inspection area. Agent Wood allowed Barbosa to leave the inspection area under surveillance, but no one made contact with Barbosa. In a subsequent interview with Drug Enforcement Administration Agent Bullock, Barbosa gave a somewhat different account of how he came to be delivering chessboards to Charley on this occasion and on his previous trip. Throughout the investigation, Barbosa denied any knowledge of the contents of the chessboards.

A. Sufficiency of the Evidence

Barbosa first argues that there was insufficient evidence to support the jury’s verdict that he knowingly and intentionally imported and possessed cocaine. This court reviews such a challenge to determine whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could conclude that the evidence was adequate to prove guilt beyond a reasonable doubt. United States v. Collins, 764 F.2d 647, 650-51 (9th Cir.1985) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Circumstantial evidence may prove knowledge or intent in cases involving possession or importation of large quantities of narcotics. See e.g., United States v. Walitwarangkul, 808 F.2d 1352, 1354 (9th Cir.), cert. denied, 481 U.S. 1023, 107 S.Ct. 1909, 95 L.Ed.2d 515 (1987); United States v. Guzman, 446 F.2d 1137, 1139 (9th Cir.1971), ce rt. denied, 404 U.S. 1022, 92 S.Ct. 697, 30 L.Ed.2d 672 (1972); United States v. Sutton, 446 F.2d 916, 920 (9th Cir.1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 699, 30 L.Ed.2d 675 (1972). Indeed, mere possession of a substantial quantity of narcotics is sufficient to support an inference that a defendant knowingly possessed the narcotics. See Collins, 764 F.2d at 652 (defendant’s possession of shipment containing eight and one-half pounds of cocaine sufficient to support jury finding of actual knowledge); cf. Walitwarangkul, 808 F.2d at 1354 (defendant’s actual possession of suitcase holding over one kilogram of heroin adequate to support conviction when coupled with other circumstantial evidence).

Barbosa emphasizes that he repeatedly denied knowledge of the contents of the chessboards, was unfailingly cooperative in offering his luggage for inspection and answering inspectors’ questions, and made no attempt to flee from custody at the airport. He also points to the absence of any finding of his fingerprints on the chessboards and argues that, taken together, these facts dictate a finding by this court that the evidence of his knowledge was insufficient to support the verdict. His argument is unpersuasive.

Barbosa’s possession of six and one-half pounds of cocaine secreted in the chessboards is undisputed. As noted, this court has found that a defendant’s mere possession of a substantial quantity of drugs may be sufficient to support an inference of knowing possession. But in this case the showing of Barbosa’s possession of the cocaine was supplemented with other evidence also tending to prove his awareness of the contents of his luggage. Apart from the amount of drugs he was carrying, the jury also could have inferred guilty knowledge from Barbosa’s apparent nervousness and anxiety during the airport inspection; from evidence presented by the government that Barbosa had made frequent trips to the U.S., at least one of which was for the purpose of making another “chessboard” delivery; and from the discrepancies in the stories Barbosa told to Special Agents Wood and Bullock. See Walitwarangkul, 808 F.2d at 1354 (jury can infer guilty knowledge from defendant’s changed story); United States v. Tebha, 770 F.2d 1454, 1457 (9th Cir.1985) (same).

The jury also could have discredited Bar-bosa’s own testimony at trial, especially given his shifting accounts of how he made contact with Felix [1] and why he had packed the chessboards so that they were buried at the bottom of his suitcase. Barbosa also[*1369] claimed at one point that part of his reason for coming to the United States this time was to get a book published and that there were people waiting to speak to him about the project. He then later admitted having no appointment to meet anyone here.

In sum, there was ample evidence apart from the fact of his possession of a substantial amount of cocaine to support a jury finding that Barbosa knowingly possessed and imported a controlled substance.

B. Sentencing Challenge

Barbosa also takes issue with the district court’s upward adjustment of his offense level under Sentencing Guideline § 3C1.1 as a result of its determination that Barbo-sa gave materially false testimony at trial. He attacks the application of § 3C1.1 in this case on three grounds: 1) infringement of his constitutional right to trial; 2) chilling effect on his right to testify on his own behalf at trial; and 3) noncompliance with the alleged requirement that the government formally present evidence of material falsehoods in his testimony and the district court make specific findings as to what the alleged falsehoods were which justified application of § 3C1.1.

§ 3C1.1 directs the sentencing judge to increase a defendant’s offense level by two levels “[i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense.” As an example of “conduct which may provide a basis for applying this adjustment,” the Application Notes include “testifying untruthfully or suborning untruthful testimony concerning a material fact.” Application Note 1(c). The district judge applied the upward adjustment in this case based on his finding that “what [the defendant] said on the witness stand was pure fantasy, fantasy.”

The district court’s determination that Barbosa obstructed justice is a factual finding which we review for clear error. United States v. Christman, 894 F.2d 339, 342 (9th Cir.1990) (citing 18 U.S.C. § 3742(e)); accord, United States v. Shoulberg, 895 F.2d 882, 884 (2d Cir.1990); United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989). Barbosa’s constitutional challenges raise questions of law and are subject to review de novo. United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989).

Barbosa first claims a “due process” sort of violation in the district court’s consideration of his false testimony to increase his offense level. He notes that giving false testimony under oath would constitute violation of several federal laws and argue that allowing enhancement under the Guidelines for such acts essentially permits punishment for what amount to criminal violations without requiring the government to prove the elements beyond a reasonable doubt. We consider this argument to be foreclosed by the Supreme Court’s decision in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1977). Holding that a sentencing judge, in fixing the sentence of a defendant within statutory limits [2] , may consider the defendant’s false testimony observed by the judge during trial, the Court dismissed Grayson’s claim that such a practice constituted punishment for the crime of perjury, for which he had not been indicted, tried, or convicted by due process. Id. at 52, 98 S.Ct. at 2616. Rather, the Court stated, “it is proper — indeed, even necessary for the rational exercise of discretion — to consider the defendant’s whole person and personality, as manifested by his conduct at trial and his testimony under oath, for whatever light those may shed on the sentencing decision.” Id. at 53, 98 S.Ct. at 2617. The enactment of the Guidelines has not altered this analysis. See United States v. Belgard, 894 F.2d 1092, 1099 (9th Cir.1990).

Barbosa’s claim of a constitutional violation stemming from the “chilling effect” on his right to testify at trial similarly was answered by the Court in Grayson. Pointing out that “[t]here is no protected right to commit perjury,” the Court declared Grayson’s argument that judicial consideration of his conduct at trial imper-[*1370] missibly “chills” a defendant’s right to testify on his own behalf “entirely frivolous.” Id. 438 U.S. at 54-55, 98 S.Ct. at 2617-18. This court too has consistently recognized the propriety of a sentencing court’s enhancing a sentence because of false testimony by a defendant. See United States v. Martinez-Navarro, 604 F.2d 1184, 1186 (9th Cir.1979) (per curiam), cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 769 (1980); United States v. Lustig, 555 F.2d 737, 751 (9th Cir.), cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285 (1977).

The Sixth Circuit recently considered and rejected a similar claim under § 3C1.1, holding that “in applying the guidelines, there is no constitutional protection against increased sentencing where it is believed that the defendant attempted to obstruct justice by lying during his testimony.” United States v. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.1989). We agree.

Finally, Barbosa cites no authority but invokes this court’s sense of “fairness” and “appropriateness” in advancing his argument that the determination of his sentence was infirm because the government failed to present any direct evidence of material falsehoods in his testimony and because the district court made no elaborate enumerations of which of Barbosa’s false statements induced its decision to apply the two-level upward adjustment. As the government points out, neither this court nor the Supreme Court has ever imposed a requirement that a district court make specific findings as to those portions of a defendant’s testimony it believes to have been falsified. See e.g., United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989) (approving language in Fifth Circuit case encouraging judges to supply more specific findings in sentencing cases, but nevertheless holding that district court’s statement that the defendant was not a ‘minor participant’ for guidelines purposes will suffice as a factual finding).

According to the provisions of 18 U.S.C. § 3742(e), a court reviewing the imposition of a sentence under the Guidelines should give "due regard to the opportunity of the district court to judge the credibility of the witnesses” and “due deference to the district court’s application of the Guidelines to the facts.” See id. It is true, as Barbosa points out, that the Application Notes to 3C1.1 require that “[i]n applying this provision, suspect testimony and statements should be evaluated in a light most favorable to the defendant.” Application Note 2, § 3C1.1. However, we agree with the Fifth Circuit that:

this note does not require the ... court to believe the defendant, but ‘simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.’

United States v. Garcia, 902 F.2d 324 (5th Cir.1990) (quoting Franco-Torres, 869 F.2d at 801).

Given the alterations of Barbosa’s story at trial and the government’s presentation of circumstantial evidence contradicting his claimed lack of knowledge about the cocaine, we find no clear error in the district court's finding that Barbosa’s testimony constituted “pure fantasy.” See United States v. Wagner, 884 F.2d 1090, 1098 (8th Cir.1989) (based on testimony by the defendant which was contradicted by testimony of law enforcement officers and which, consistent with the jury’s verdict, the district court deemed untruthful, court concluded that adjustment for obstruction of justice was lawfully applied); Franco-Torres, 869 F.2d at 801 (upholding upward adjustment under § 3C1.1 where there was sufficient evidence in the record to permit sentencing judge to conclude that defendant had obstructed the administration of justice).

AFFIRMED.

1

. Barbosa at first denied having been able to reach Felix by telephone, but then later in his testimony inadvertently referred to a phone call he made to Felix. Upon being questioned about the inconsistency, Barbosa then said he had a "temporary" phone number for Felix.

2

. Barbosa's sentence is within the guidelines range for his offenses.