USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1647
JAMES SINGLETON,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Richard J. Shea for appellant.
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Carlos A. P rez, Assistant United States Attorney, with whom
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Daniel F. Lopez-Romo, United States Attorney, and Jos A. Quiles-
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Espinosa, Senior Litigation Counsel, were on brief for appellee.
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June 10, 1994
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CYR, Circuit Judge. Petitioner James Singleton appeals
CYR, Circuit Judge.
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from a district court order dismissing his motion for post-
conviction relief, see 28 U.S.C. 2255, from a judgment of
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conviction for possessing marijuana, with intent to distribute,
in violation of the Maritime Drug Law Enforcement Act (MDLEA).1
See 18 U.S.C. 2; 46 U.S.C. App. 1903(a), (c), (f). Along
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with a surfeit of lesser grounds, we must assess whether Single-
ton was denied effective assistance, see Strickland v. Washing-
___ __________ ________
ton, 466 U.S. 668 (1984), based on trial counsel's failure to
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object to a jury instruction which effectively directed a verdict
on an essential element of the crime charged. We affirm the
district court judgment.
I
I
BACKGROUND
BACKGROUND
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Shortly after midnight on January 5, 1988, the United
States Coast Guard Cutter DAUNTLESS made radar contact with a
vessel approaching on the high seas from the direction of Haiti.
Suspecting that the vessel might contain illegal Haitian
immigrants, the DAUNTLESS attempted to establish radio communica-
tion, but to no avail. Shortly thereafter, Coast Guard Ensign
Pulver approached to within thirty yards of the unidentified
vessel in a boarding craft, and noted the name MARILYN E and the
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1Singleton's conviction was upheld on direct appeal in
United States v. Doe, 921 F.2d 340 (1st Cir. 1990).
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letters "KA" and "JN" on the stern but no home port designation
or flag. Pulver made voice contact with a person aboard the
MARILYN E who explained that the vessel was en route from King-
ston Bay, Jamaica, and bound for Kaison Bank, in the Bahamas, to
fish. Ensign Pulver obtained consent to board the
MARILYN E from codefendant Willey Gordon, the master. Pulver and
the boarding crew found Gordon, Singleton and four others on
board the MARILYN E. The MARILYN E was leaky and in serious
disrepair. The scant fishing gear on board was inoperable and
the vessel was not provisioned for an extended voyage.
Shortly after boarding, Pulver asked the master for the
certificate of documentation. Gordon asserted that though the
MARILYN E was of Jamaican registry, she was carrying no documen-
tation. At that point, codefendant Earl McLeish volunteered that
he knew where the documentation papers were kept, and soon
produced a Coast Guard "bill of sale" form and an expired United
States Certificate of Documentation.2 Asked what was in the
hold, Gordon responded that it contained ice. Whereupon Pulver
requested and received permission to open the hold, which was
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2Though both documents suggested United States registry,
neither the bill of sale nor the expired certificate of documen-
tation constituted proper documentation of registry. The bill of
sale memorialized a 1986 sale of the MARILYN E by one Clyde
Randolph Eubanks to one Hubert Henderson, and was acknowledged in
Cateret County, North Carolina. The certificate of documentation
was registered to Eubanks but had expired more than one and one-
half years earlier.
3
foundtocontainbalesofmarijuanaweighingapproximately3,750 pounds.3
Ensign Pulver requested authorization from the Command-
er of the DAUNTLESS to arrest the captain and crew of the MARILYN
E. But because the procedures to be followed in arresting the
crew, and seizing the vessel, would depend on the nationality of
the MARILYN E, Pulver continued to question Gordon. Asked
whether there were any flags aboard the MARILYN E, Gordon at
first said there were none, but then corrected himself by saying
he believed there was one flag forward. Upon overhearing Ensign
Pulver's question to Gordon, Singleton located a United States
flag and a plain yellow quarantine flag in the fore of the
vessel.4 Thus, it remained unclear whether the MARILYN E was a
United States vessel, as the United States flag and the dated
documentation papers suggested, a Jamaican vessel, as Gordon
claimed, or a stateless vessel.
In order to ensure the legality of the ensuing arrests
and seizure, Ensign Pulver initiated a formal request to obtain
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3To this point, Singleton's only statement to the Coast
Guard had been: "I'm James Singleton and I'm from the United
States."
4Our opinion on direct appeal merely stated that the flag
was yellow. Doe, 921 F.2d at 342. The district court opinion
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dismissing appellant's section 2255 motion states that "[t]he
yellow flag was later identified as being a flag from Quebec."
Singleton v. United States, 789 F. Supp. 492, 494 (D.P.R. 1992).
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The confusion is entirely understandable, but we note that the
yellow flag in question is a signalling flag indicating "quaran-
tine." Howard L. Andrews & Alexander L. Russell, Basic Boating:
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Piloting and Seamanship 65 (2d ed. 1974). In nautical circles,
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it is known, colloquially, as "Quebec," the international phonet-
ic representation for the letter "Q," see The ARRL Handbook for
___ ______________________
the Radio Amateur 38-4 (Kirk A. Kleinschmidt ed.) (67th ed.
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1990).
4
Jamaican consent to the enforcement of United States drug laws
aboard the MARILYN E,5 and simultaneously sought authorization
from the Coast Guard Commandant in Washington, D.C. Several
hours later, with authorization from the Coast Guard Commandant
and the consent of the Jamaican government, the six persons on
board the MARILYN E were arrested and transferred to the DAUNT-
LESS, whereupon Miranda warnings were administered to each.
Shortly thereafter, the Coast Guard Cutter MOHICAN rendezvoused
with the DAUNTLESS, took custody of the MARILYN E, and set out to
tow her to Puerto Rico. The MARILYN E proved unseaworthy,
however, and she sank (with most of her illicit cargo) en route.
II
II
DISCUSSION
DISCUSSION
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A. The Erroneous Jury Instruction
A. The Erroneous Jury Instruction
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Singleton contends that the trial judge effectively
withdrew from the jury a material element of the crime charged
under 46 U.S.C. App. 1903(a); viz., whether the MARILYN E was
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5Had Gordon's unsubstantiated claim of Jamaican registry
proven valid, Jamaican "consent" would have been necessary to
secure jurisdiction under the criminal statute pursuant to which
Singleton and the other defendants were indicted. See 46 U.S.C.
___
App. 1903(c)(1)(C) (authorizing enforcement of United States
drug laws on, inter alia, "a vessel registered in a foreign
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nation where the flag nation has consented or waived objection to
the enforcement of United States law by the United States").
5
"a vessel subject to the jurisdiction of the United States,"
within themeaning of theMDLEA.6 The jury wasinstructed asfollows:
Well, in this particular case, one of the
elements that you will have to decide is
whether this was a vessel of the United
States and there is no real controversy in my
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own mind about that. The parties, the evi-
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dence is there. There is [sic] exhibits that
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tell you that this vessel was registered,
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documented in the United States . . . .
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[46 U.S.C. App. 1903] says basically
this, it is unlawful for any person on board
a vessel of the United States or on board a
vessel subject to the jurisdiction of the
United States and in this particular case, I
already pointed to you out [sic.] the fact
that there is no real controversy about that
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fact . . . That is what you have to decide,
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possess with the intent to manufacture and
distribute a controlled substance and then
sub-section C is the one that defines a ves-
sel subject to the jurisdiction of the United
States and I have already told you that the
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Marilyn E, with the papers that we have on
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hand, is a vessel subject to the jurisdiction
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of the United States. . . .
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. . . If I were to read the elements of
this offense, I would tell you as follows: I
would tell you that you would have to find in
each particular case that each defendant was
located on board a vessel subject to the
jurisdiction of the United States when this
happened. . . .
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6At the time of Singleton's arrest and conviction, the MDLEA
provided:
It is unlawful for any person on board a vessel of the
United States, or on board a vessel subject to the
jurisdiction of the United States, to knowingly or
intentionally manufacture or distribute, or to possess
with intent to manufacture or distribute, a controlled
substance.
46 U.S.C. App. 1903(a) (Supp. 1987). A subsequent amendment
extended jurisdiction over a "citizen of the United States . . .
aboard any vessel." See Pub. L. 100-690, 7402(a), Oct. 21,
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1988, 102 Stat. 4181 (amending 46 U.S.C. App. 1903(a)).
6
(Emphasis added.)7
In its ruling dismissing Singleton's section 2255
motion, see Singleton v. United States, 789 F. Supp. 492, 495
___ _________ ______________
(D.P.R. 1992), the district court recognized the fair import of
the challenged instruction to be that the jurisdictional element
of the crime charged had been established to the satisfaction of
the court. See United States v. Potes, 880 F.2d 1475, 1478 n.1
___ _____________ _____
(1st Cir. 1989) ("Because this jurisdictional requirement was an
element of the offense, and because it depended upon factual as
well as legal determinations, it was for the jury to decide
whether it had been satisfied."). The district court ruled,
nonetheless, that any error was harmless. Id. at 501-04.8 On
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appeal, Singleton insists that this instructional error could not
have been harmless since it relieved the jury of its
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responsibility to determine whether the government had proven an
essential element of the crime beyond a reasonable doubt.
We observe at the outset that the established "princi-
ple that collateral review is different from direct review
resounds throughout our habeas jurisprudence." Brecht v. Abra-
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hamson, 113 S. Ct. 1710, 1719 (1993). A presumption of finality
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7Singleton's trial counsel neither requested an instruction
on the jurisdictional element, nor objected to the instruction
given.
8The harmlessness ruling was based on the conclusion that
the MARILYN E was a "vessel of the United States" under 46 U.S.C.
12111(c)(1), which provides that "until a certificate of
documentation is surrendered with the approval of the Secretary,
a documented vessel is deemed to continue to be documented . . .
." The government concedes that the quoted provision was enacted
after these events took place.
7
attaches to criminal convictions once all direct appeals have
been exhausted. Barefoot v. Estelle, 463 U.S. 880, 887 (1983);
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United States v. Frady, 456 U.S. 152, 164-65 (1982). Post-
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conviction relief on collateral review is an extraordinary
remedy, available only on a sufficient showing of fundamental
unfairness. Brecht, 113 S. Ct. at 1719. Trial errors, even those
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that implicate Seventh Amendment concerns, are subject to strin-
gent "harmless error" review in a collateral proceeding. Id. at
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1723 (Stevens, J., concurring).
We recently had occasion to survey the developing
"harmless error" jurisprudence in a section 2254 case where the
petitioner sought to overturn his state court conviction on the
basis of an erroneous jury instruction. See Libby v. Duval, 19
___ _____ _____
F.3d 733, 738-40 (1st Cir. 1994). In Libby, we identified the
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appropriate "harmless error" inquiry as whether the government
can demonstrate that the erroneous instruction "did not have a
substantial and injurious effect or influence in determining the
jury's verdict." Id. at 18 & n.15; see also Brecht, 113 S. Ct. at
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1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776
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(1946)).9 The "actual prejudice" review required under Brecht
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9Libby and Brecht arose under 28 U.S.C. 2254. Thus, one
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significant element in the rationale underlying Brecht namely,
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comity concerns based in federalism is plainly lacking in a
collateral proceeding arising under 28 U.S.C. 2255. Neverthe-
less, we think the Brecht rationale fundamentally anchored in
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traditional concerns for finality operates with like vigor in
the federal habeas context: "granting habeas relief merely
because there is a 'reasonable possibility' that trial error
contributed to the verdict, Chapman v. California, 386 U.S. 18,
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24, is at odds with the historic meaning of habeas corpus -- to
afford relief to those whom society has 'grievously wronged.'"
8
must encompass the record as a whole. Id.; Libby, 19 F.3d at
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740. Under the well-seasoned Kotteakos standard, therefore,
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trial error is deemed harmless only if the record as a whole
permits the reviewing court to conclude:
"with fair assurance, after pondering all
that happened without stripping the erroneous
action from the whole, that the judgment was
not substantially swayed by the error."
[Kotteakos, 328 U.S. at 765. This test] "is
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satisfied if it is 'highly probable' that the
challenged action did not affect the judg-
ment." United States v. Hernandez-Bermudez,
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857 F.2d 50, 53 (1st Cir. 1988).
United States v. Wood, 924 F.2d 399, 402 (1st Cir. 1991) (quoting
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United States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989)). Thus,
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the Singleton conviction can withstand collateral review only if
it is determined, based on the entire trial record, that the
government has demonstrated that a reasonable jury would have
found that the jurisdictional element required for conviction
under section 1903 was established beyond a reasonable doubt
notwithstanding the erroneous instruction.
The present inquiry under Kotteakos and Brecht requires
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close examination of the MDLEA and its jurisdictional predicates.
The MDLEA in force in January 1988 proscribed possession, with
intent to distribute, marijuana "on board a vessel of the United
States or a vessel subject to the jurisdiction of the United
__
States." 46 U.S.C. App. 1903(a) (Supp. 1987) (emphasis added).
Section 1903(c) provides in pertinent part that the term "vessel
subject to the jurisdiction of the United States" includes:
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Brecht, 113 S. Ct. at 1721 (secondary citations omitted).
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9
(A) A vessel without nationality;
(B) A vessel assimilated to a vessel without
nationality, in accordance with Article 6(2)
of the 1958 Convention on the High Seas; and
(C) A vessel registered in a foreign nation where
the flag nation has consented or waived
objection to the enforcement of United States
law by the United States.
See 46 U.S.C. App. 1903(c). Thus, jurisdiction would exist
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under the MDLEA if the MARILYN E were (1) American, as a vessel
of the United States; (2) Jamaican, since Jamaican authorities
consented to her boarding; (3) a vessel without nationality; or
(4) a vessel assimilated to a vessel without nationality.10
Section 1903(c)(1)(B) provides that a "vessel assimi-
lated to a vessel without nationality" in accordance with Article
6(2) of the Convention on the High Seas comes within the ambit of
the MDLEA. United States v. Passos-Paternina, 918 F.2d 979, 982
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(1st Cir. 1990), cert. denied, 499 U.S. 982 (1991), and cert.
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denied 111 S. Ct. 2809 (1991). Article 6(2) provides that "[a]
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ship which sails under the flags of two or more States, using
them according to convenience, may not claim any nationalities in
question with respect to any other state, and may be assimilated
to a ship without nationality." Convention on the High Seas,
Art. 6(2), opened for signature, Apr. 29, 1958, 13 U.S.T. 2312,
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T.I.A.S. No. 5200, quoted in United States v. Ayaraza-Garcia, 819
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10The trial record amply supports the district court finding
that section 1903 jurisdiction was never contested at trial.
Indeed, the government and the defendants paid little attention
to it. Although there can be no doubt that the jury instruction
was premised, however improvidently, on the correct impression
that section 1903 jurisdiction was a non-issue as far as the
parties were concerned, this weakness in the government's trial
presentation is no less vigorously pressed on collateral review.
10
F.2d 1043, 1046-47 (11th Cir.), cert. denied, 484 U.S. 969
_____ ______
(1987); see also United States v. Garate-Vergara, 942 F.2d 1543,
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1554-55 (11th Cir. 1991), modified, 991 F.2d 662 (11th Cir.),
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cert. denied, 114 S. Ct. 481 (1993); Passos-Paternina, 918 F.2d
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at 982 ("the clear purport of [Article 6(2)] requires that a
vessel which sails under the authority of two or more nations be
considered 'assimilated to a vessel without nationality.'"). In
the context of the MDLEA, Article 6(2) is broadly interpreted,
and reaches beyond the literal thrust of its "flying two flags"
language to encompass conduct amounting to conflicting claims of
nationality. Id. (surveying cases).
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As to the registry of the vessel, the record reveals
that Captain Gordon was evasive, claiming at various times that
the MARILYN E carried neither flags nor documentation. Although
the captain asserted that the MARILYN E was of Jamaican registry,
and a crew member claimed to have sailed out of Kingston Bay, the
scant documentation, and the only flags found on board, suggested
United States registry. Further, the MARILYN E was not flying
the flag of any nation at the time she was sighted, nor did she
bear her home port designation or other registry information.
See United States v. Matute, 767 F.2d 1511, 1513 (11th Cir. 1985)
___ _____________ ______
(finding absence of home port designation "a clear indication
that the crew wanted to be able to manipulate the vessel's
'nationality' on short notice"). Section 1903(c)(1)(B) was meant
to encompass this precise sort of ambivalent behavior. See id.
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(holding that use of Colombian flag and Venezuelan registry
11
papers is "precisely" what statute and Article 6(2) contemplat-
ed); Passos-Paternina, 918 F.2d at 981-83 (holding that conflict-
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ing claims of registry and carrying different flags "were tanta-
mount to sailing under the authority of more than one nation
under convenience").
The uncontroverted evidence that the captain and crew
repeatedly provided the Coast Guard with equivocal and
contradictory registry information satisfies us that a properly
instructed jury would have concluded that the United States met
its burden of proving, beyond a reasonable doubt, that the
MARILYN E was a "vessel subject to the jurisdiction of the United
States" within the meaning of 46 U.S.C. 1903.
B. Ineffective Assistance of Counsel
B. Ineffective Assistance of Counsel
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The Sixth Amendment provides that criminal defendants
are entitled to the effective assistance of trial counsel.
Strickland, 466 U.S. at 687. "But 'the Constitution does not
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guarantee a defendant a letter-perfect defense or a successful
defense; rather the performance standard is that of reasonably
effective assistance under the circumstances then obtaining.'"
Lema v. United States, 987 F.2d 48, 50 (1st Cir. 1993) (quoting
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United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991)).
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"The habeas court must evaluate the [challenged] conduct from
counsel's perspective at the time, considering the totality of
the circumstances before it, and making every effort to eliminate
the distorting effects of hindsight." Id. (citations and quota-
___
tions omitted). We indulge "a strong presumption that counsel's
12
conduct falls within a wide range of reasonable professional
assistance." Id. (citing Strickland, 466 U.S. at 689). Besides
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bearing the burden of proving that trial counsel's performance
was not within this wide range of reasonable professional assis-
tance, Singleton must establish that counsel's performance was
sufficiently prejudicial to undermine confidence in the outcome
of the trial. Strickland, 466 U.S. at 693-94. Singleton asserts
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prejudice from several alleged lapses on the part of trial
counsel.11
First, he points out that trial counsel did not attempt
to suppress the evidence seized aboard the MARILYN E. The uncon-
troverted record evidence reveals, however, that the master of
the MARILYN E consented to the Coast Guard boarding. Moreover,
the MARILYN E was subject to boarding simply on the basis of a
reasonable pre-boarding suspicion that she was a stateless
vessel. See United States v. Alvarez-Mena, 765 F.2d 1259, 1268
___ ______________ ____________
(5th Cir. 1985) ("Coast Guard need have only a 'reasonable
suspicion' that a vessel is subject to United States law before
effecting a seizure of the vessel in international waters.");
accord Potes, 880 F.2d at 1478 (dicta). As the MARILYN E flew no
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flag, bore no home port designation, and could not be raised by
radio, there was an adequate basis for the reasonable suspicion
needed to stop and board her. See Alvarez-Mena, 765 F.2d at 1268
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11As it resulted in no "prejudice" within the meaning of
Strickland, see supra pp. 5-12, we need give no further consider-
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ation to the "ineffective assistance" claim that trial counsel
failed to challenge the jury instruction on section 1903 juris-
diction.
13
(finding abundant reasonable suspicion where, inter alia, vessel
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"flew no flag, and had no stern markings indicating home port or
country"). And, of course, Ensign Pulver obtained Captain
Gordon's permission before opening the hold.
Second, Singleton claims prejudice from counsel's
failure to challenge the adequacy of the Miranda warnings. See
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Miranda v. Arizona, 384 U.S. 436 (1966). The crew received
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Miranda warnings just prior to their transfer to the DAUNTLESS,
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moments after their arrests. Although he did speak with Coast
Guard personnel before being formally arrested, Singleton has not
identified any evidence illegally obtained prior to receiving
Miranda warnings. Our review suggests but one possibility; viz.,
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Singleton's admission that he was "from the United States," see
___
supra note 3. But the uncontroverted testimony of Ensign Pulver
_____
makes clear that Singleton volunteered this admission. Thus,
even assuming that Singleton was in "custody," this statement was
not made in response to interrogation. See Miranda, 384 U.S. at
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467 (rule applies to "in-custody interrogations"). We find no
colorable basis for a cognizable Miranda claim.
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Third, Singleton faults counsel's failure to move for a
separate trial. As a general rule, joinder for trial is proper
if issues of fact and law overlap and the practical benefits of a
joint trial outweigh each defendant's interest in a separate
trial. See, e.g., United States v. Arruda, 715 F.2d 671, 677-81
___ ____ _____________ ______
(1st Cir. 1983). Singleton has not demonstrated that counsel's
14
failure to press for a separate trial was outside the wide range
of reasonable professional assistance.
Significantly, codefendant McLeish unsuccessfully moved
for severance early in the proceedings. Like Singleton, McLeish
pursued a "hitchhiker" defense, claiming that he had been picked
up serendipitously by the MARILYN E while adrift at sea. In
light of the lack of success with which McLeish's request for
severance was met, we cannot say that trial counsel's performance
was deficient under the Sixth Amendment. See United States v.
___ _____________
Pellerito, 878 F.2d 1535, 1540 (1st Cir. 1985) (codefendants'
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failed efforts are relevant in assessing other counsel's decision
not to pursue similar tactics). Indeed, the McLeish motion bears
all the earmarks of a stalking-horse strategy. "Effectiveness
does not require that counsel jump through every conceivable
hoop, or engage in futile exercises." Id. (citing United States
___ ______________
v. Cronic, 466 U.S. 648, 656 n.19 (1984) ("useless charade" not
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required); United States v. Levy, 870 F.2d 37, 38 (1st Cir. 1989)
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(similar)). In any event, there has been no showing of prejudice
to Singleton resulting from the joint trial.
C. Defaulted Claims
C. Defaulted Claims
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Several additional claims advanced by Singleton suffer
from various forms of procedural default, and essentially repre-
sent attempts to recast arguments already rejected in connection
with the "ineffective assistance" claim.12 Singleton attempts,
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12The defaulted claims include an attempt to raise the
groundless Miranda claim. See supra p. 14.
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15
to no avail, see Lopez-Torres v. United States, 876 F.2d 4, 5
___ ____________ ______________
(1st Cir.), cert. denied, 493 U.S. 979 (1989), to revisit the
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defaulted claim relating to improper joinder for trial, though it
was neither raised before the trial court nor on direct appeal.
Furthermore, Singleton challenges his 360-month sentence as
having been based on a sentencing guideline determination that he
was responsible for possessing, with intent to distribute, 3,750
pounds of marijuana, whereas there was no evidence that he knew
the weight, and no evidence that the bales lost at sea contained
marijuana. Not only was a substantially similar argument reject-
ed on direct appeal, see Doe, 921 F.2d at 347, but "[i]ssues
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disposed of in a prior appeal will not be reviewed again by way
of a 28 U.S.C. 2255 motion," United States v. Dirring, 370 F.2d
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862, 864 (1st Cir. 1967), cited in Barrett v. United States, 965
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F.2d 1184, 1190 n.11 (1st Cir. 1992). Additionally, this argu-
ment does not appear in the section 2255 motion, but first
emerged in Singleton's supplemental appellate brief. See Dziur-
___ ______
got v. Luther, 897 F.2d 1222, 1224 (1st Cir. 1990) (holding
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claims not raised in section 2255 motion will not be reviewed on
appeal). Finally, further review of Singleton's challenge to the
sufficiency of the evidence, addressed and rejected on direct
appeal, Doe, 921 F.2d at 346, is also foreclosed, Tracey v.
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United States, 739 F.2d 679, 682 (1st Cir. 1984).
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Affirmed.
Affirmed.
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16
