USCA1 Opinion
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No. 94-2303
UNITED STATES OF AMERICA,
Appellee,
v.
ALEJANDRO COLLADO,
Defendant, Appellant.
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No. 95-1041
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL CRUZ-SORIANO,
Defendant, Appellant.
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No. 95-1080
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL BRITO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Jeffrey E. Feiler, P.A. on consolidated brief for appellants.
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Miguel Brito on supplemental brief pro se.
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Jose A. Quiles, Assistant United States Attorney, Senior
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Litigation Counsel, Guillermo Gil, United States Attorney, and Jacabed
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Rodriguez Coss, Assistant United States Attorney on briefs for the
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United States.
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February 1, 1996
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CAMPBELL, Senior Circuit Judge. This is a consolidated
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appeal on behalf of three defendants who were aboard a vessel
that was intercepted for narcotics trafficking in Puerto
Rican waters. Following a four-day joint jury trial,
Alejandro Collado, Miguel Cruz-Soriano, and Miguel Brito were
found guilty of aiding and abetting the possession of cocaine
with intent to distribute, in violation of 21 U.S.C. 841(a)
and 18 U.S.C. 2.1 Each received a sentence of 235 months
of imprisonment to be followed by five years of supervised
release. On appeal they claim that the evidence was
insufficient to sustain the jury verdict. In a supplemental
brief filed pro se, defendant Brito asserts several other
errors that allegedly infected the trial and his sentence.
I. Background
I. Background
We summarize the relevant evidence in the light
most favorable to the verdict. See United States v. DeMasi,
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40 F.3d 1306, 1310 (1st Cir. 1994), cert. denied, 115 S. Ct.
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947 (1995). In the early hours of January 27, 1994, the U.S.
Customs Service Air Branch dispatched two aircraft to the
southeast of St. John in the U.S. Virgin Islands after
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1 A second count charging aiding and abetting the
possession of cocaine with intent to distribute, on board a
vessel of the United States and subject to its jurisdiction,
in violation of 46 U.S.C. 1903(a)(1), (a)(2)(C), & (f) and
18 U.S.C. 2, was dismissed following the defendants' motion
for judgment of acquittal pursuant to Fed.R.Crim.P. 29.
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learning that an air drop of contraband was to take place.
The plane making an air drop was not found, but a vessel was
detected in the suspected area, east of Puerto Rico, by a
Customs NOMAD maritime surveillance and search aircraft
equipped with a 360-degree radar ("Omaha 05"). Pilot Mark
Jackson first observed the vessel from his window at
approximately 3:33 a.m., aided by bright moonlight. He
testified that the vessel was traveling without lights and
quickly, leaving behind observable waves. The air
interdiction officer who assisted him, Leslie Robb,
immediately located the vessel using a forward looking
infrared (FLIR) system. This equipment senses heat energy
emitted by objects and produces black and white images which
can be recorded on videotape, as was done here.
Omaha 05 tracked the vessel for about forty-five
minutes until it reached Cayo Luis Pena, an uninhabited key
near the eastern coast of Puerto Rico. During this period
the vessel occasionally stopped; Officer Robb testified that
smugglers often use this tactic of going "dead in the water"
(DIW) in order to listen for surveillance aircraft and avoid
detection. Omaha 05 lost track of the vessel at least twice
during this period. Contact resumed within a few minutes
each time, according to the videotape and testimony by Robb.
After the vessel reached Cayo Luis Pena, Officer
Robb observed at least three people moving to and from the
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shore. The vessel departed seven to ten minutes later, at
about 4:30 a.m. It traveled westward without lights at a
gradually increasing speed. Omaha 05 tracked the vessel for
about forty minutes and then lost contact at 5:09 a.m. for
twelve minutes. Officer Robb explained at trial that he lost
the target vessel when it went DIW and his attention was
focused on the radar, instead of the FLIR (a manual tracking
system), in order to direct a Customs marine unit to the
target vessel. Robb temporarily was unable to detect any
vessel in the area. He then located the Customs marine unit
and a fuerzas unidas rapida accion (FURA) vessel of the
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Puerto Rican Police Department, and at 5:21 a.m. reacquired
the target vessel on the FLIR. The vessel was less than one
mile from the point where it was lost. Robb testified that
no other vessels were detected in the area.
Omaha 05, assisted by a FURA helicopter, guided the
Customs marine unit to intercept the target vessel. Pedro
Vicens, a special agent and criminal investigator on the
Customs boat, testified that four individuals2 were aboard
the twenty-four foot fishing boat which had two seventy-five
horsepower engines. The vessel had two large gas tanks built
into the area that customarily stores fishing equipment or
bait. Approaching the vessel, Vicens sensed a strong odor of
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2 Diogenes Arturo Marcelino, in whose name the boat was
registered, entered a guilty plea before the trial of the
three defendants-appellants.
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gasoline. He soon observed that the boat was full of fluid
and gasoline: the fuel line had been cut, gas was coming from
the tank, and individuals aboard appeared to be bailing out
gasoline from the bottom of the vessel and moving as if to
wash something. He testified that washing the deck to
conceal any smell or residue of narcotics was a common
practice of drug smugglers.
The four aboard were taken into custody and
transported along with the vessel to the police station at
Puerto Chico. Thereafter, Pilot Jackson and Officer Robb
accompanied Customs Agents Vicens and Hector Marte (among
others) by helicopter to Cayo Luis Pena, the uninhabited key
at which Omaha 05 had observed the vessel stop approximately
three hours earlier. There they searched the area where
movement had been detected. They found nine bales containing
261 kilograms of cocaine, as a laboratory test confirmed.
Upon return to the station at Puerto Chico, Marte
photographed the vessel and retrieved fibers of plastic, red
and yellow yarn, green fluorescent material, and plastic
bubble wrapping. A forensic chemist compared these samples
to ones taken from the wrapped bales found at Cayo Luis Pena
and testified that they had the same chemical composition.
Also found on the boat were life jackets, a knife, flare
guns, spark plugs, and damp cloth.
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At the close of the government's case, the defense
moved for a judgment of acquittal on both counts pursuant to
Fed.R.Crim.P. 29. The district court denied the motion as to
count one and reserved ruling on the second count. The
defense rested without presenting evidence and again moved
for a judgment of acquittal. The following day the district
court again denied the motion as to count one, and granted it
as to count two. It instructed the jury on the charge of
aiding and abetting the possession of cocaine with intent to
distribute. A guilty verdict was returned against all
defendants.
II. Discussion
II. Discussion
Defendants challenge the sufficiency of the
evidence to support their convictions. They claim that the
government failed to show the shared criminal intent required
for an aiding and abetting charge. They add that the
temporary losses of tracking on the FLIR system and the
weakness of the circumstantial evidence connecting them to
drug trafficking warrant a reversal of their convictions.
In reviewing these claims, we consider the evidence
in the record as a whole, including all reasonable inferences
therefrom, in the light most favorable to the prosecution in
order to ascertain whether a rational jury could have found
defendants guilty beyond a reasonable doubt. See United
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States v. Romero, 32 F.3d 641, 645 (1st Cir. 1994). In so
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doing, we defer to the jury's determinations of credibility
and respect its reasonable construction of the evidence. See
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id. We note that "no premium is placed upon direct as
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opposed to circumstantial evidence," and that "'individual
pieces of evidence, insufficient in themselves to prove a
point, may in cumulation prove it.'" United States v. Ortiz,
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966 F.2d 707, 711 (1st Cir. 1992) (citations omitted), cert.
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denied, 113 S. Ct. 1005 (1993).
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Defendants contend that the government had to prove
that they had a shared criminal intent and were not merely
present at or aware of a criminal act. See Nye & Nissen v.
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United States, 336 U.S. 613, 619 (1949) (a defendant who aids
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and abets must "in some sort associate himself with the
venture, . . . participate in it as in something that he
wishes to bring about") (citing United States v. Peoni, 100
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F.2d 401, 402 (2d Cir. 1938)); United States v. Francomano,
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554 F.2d 483, 486 (1st Cir. 1977) ("mere presence at the
scene and knowledge that a crime was to be committed" is
insufficient to show aiding and abetting) (citation omitted).
They assert that no proof was offered on the relationship
between them and the apparent captain (in whose name the boat
was registered), between the four aboard and the three
persons observed offloading at Cayo Luis Pena, or between the
defendants themselves. Moreover, no connection to any plane
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making an air drop was ever established. Defendants add that
upon interception of the vessel, they permitted Agent Vicens
to board and cooperated fully.
The record, considered as a whole, does not support
defendants' argument. The knowledge element of a charge
under
841(a) "can rarely be established with direct evidence."
United States v. Gonzalez-Torres, 980 F.2d 788, 791 (1st Cir.
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1992). Circumstantial evidence has been held to justify a
finding of criminal intent on facts quite similar to the
instant case: i.e., where only a few individuals are aboard a
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small boat, large or extra gas tanks are in place (rather
than more typical bait or fishing equipment), the vessel
periodically runs without lights and goes DIW, an FLIR system
tracks the vessel to the site where drugs are later found,
traces of material used to wrap the cocaine are found on
board, and a legitimate alternative purpose for the voyage
appears lacking. See, e.g., United States v. Morales-
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Cartagena, 987 F.2d 849, 852 (1st Cir. 1993); United States
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v. Alvarado, 982 F.2d 659, 661-662 (1st Cir. 1992); United
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States v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir.),
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cert. denied, 498 U.S. 877 (1990); United States v. Corpus,
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882 F.2d 546, 550 (1st Cir.), cert. denied, 493 U.S. 958
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(1989) and 497 U.S. 1009 (1990). A jury could reasonably
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infer from the evidence that each of the defendants possessed
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the requisite criminal intent and aided and abetted the
accomplishment of the offense as charged.3
Defendants attempt to poke several other holes in
the prosecution's case: 1) no plane making an air drop was
found; 2) the intercepted vessel itself contained no
contraband; 3) the residue particles found on board could
have been tracked on by Agent Marte after he helped to
collect the cocaine bales from Cayo Luis Pena, especially as
he did not note the presence of any residue when he
intercepted and boarded the vessel; 4) Agent Vicens did not
document any cut fuel line or gasoline on deck in his report
of the incident; 5) no description of the vessel is provided
in the audio/videotape; 6) the vessel initially tracked was
said to be traveling toward Fajardo on the east side of
Puerto Rico, whereas Cayo Luis Pena is northward; and 7) the
FLIR system lost the suspected vessel at least three times,
including once for a twelve-minute period, after which the
vessel was found within one mile of its previous location
despite testimony as to its capacity for rapid travel.
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3 As the government notes, defendants do not
specifically challenge the sufficiency of the evidence
relating to an intent to distribute. Proof beyond a
reasonable doubt of knowing possession for the purpose of
distribution is required for a charge under 841(a). See
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United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir. 1993).
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To the extent that defendants' challenge was meant to
incorporate this aspect of intent, our holding is unchanged.
Their intent to distribute can reasonably be inferred from
the large quantity of cocaine (261 kilograms), cf. id. at
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1165, which was deposited on the uninhabited key.
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We again find the above argument unpersuasive when
assessed in light of the record as a whole. With respect to
the last three points alleging misidentification of their
vessel, the jury was free to believe the testimony of Officer
Robb, who operated the radar and FLIR system and detailed the
process by which Omaha 05 tracked the vessel. The jury
viewed much of the videotape, including the twelve-minute
period when the Omaha 05 lost the vessel. Its apparent
decision to credit Robb's testimony that no other non-
governmental vessels were in the area at the time and that
the same vessel was subsequently located is a plausible view
of the evidence.
The jury also could have reasonably concluded that
the vessel changed direction at some point in its voyage.
The absence of contraband aboard is not fatal to the
prosecution's case, given substantial evidence connecting the
vessel to the cocaine (e.g., the videotape, the positive
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match of wrapping samples, the departure of the vessel from
Cayo Luis Pena without lights at an increasing speed, and the
evidence of extra fluid on the vessel bottom and the crew
members' washing motions). Cf. Cuevas-Esquivel, 905 F.2d at
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512, 515 (affirming conviction where no contraband was found
aboard but a videotape showed a tarp being thrown from the
ship and bales floating nearby); Corpus, 882 F.2d at 549-550
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(same, where bales were observed being thrown from the ship
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and floating nearby, no other vessel was shown to be in the
area, and the vessel bottom appeared to have been recently
washed). Nor do defendants' other contentions warrant
disturbingthejury'sassessment oftheoverallevidence presented.
It is well established that the government need not
"disprove every reasonable hypothesis of innocence, provided
that the record as a whole supports a conclusion of guilt
beyond a reasonable doubt." Cuevas-Esquivel, 905 F.2d at
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514; Gonzalez-Torres, 980 F.2d at 790. We find that
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sufficient evidence was presented to sustain the guilty
verdicts here.4
The judgments of conviction are affirmed.
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4 We have considered, in addition, the separate
contentions made by defendant Brito in his brief. We find
these contentions to be without merit.
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