USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1843 UNITED STATES,
Appellee,
v.
FRANKLYN RIVERA-SANTIAGO,
Defendant - Appellant.
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No. 95-1844
UNITED STATES,
Appellee,
v.
EDWIN ALAMO-SILVA,
Defendant - Appellant.
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ERRATA
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The following change should be made in the opinion dated
March 10, 1997:
Page 14, n.6, line 10 - insert the word on between the
words based and its.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1843
UNITED STATES,
Appellee,
v.
FRANKLYN RIVERA-SANTIAGO,
Defendant - Appellant.
____________________
No. 95-1844
UNITED STATES,
Appellee,
v.
EDWIN ALAMO-SILVA,
Defendant - Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and DiClerico, Jr.,* District Judge.
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* Of the District of New Hampshire, sitting by designation.
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Roberto Rold n-Burgos for appellant Franklyn Rivera-Santiago
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and Rachel Brill for appellant Edwin Alamo-Silva were on joint
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brief.
Jacabed Rodr guez-Coss, Assistant United States Attorney,
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with whom Guillermo Gil, United States Attorney, Jos A. Quiles,
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Senior Litigation Counsel, and Nelson P rez-Sosa, Assistant
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United States Attorney, were on brief for appellee.
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March 10, 1997
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Per Curiam. Defendants, Franklyn Rivera-Santiago and
Per Curiam.
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Edwin Alamo-Silva, challenge their convictions and sentences
following a jury trial. For the reasons discussed below, we
vacate their convictions and remand for a new trial.
I. Background
I. Background
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We recount only those facts necessary to resolve the
instant appeals. On January 25, 1995, a grand jury returned a
three-count indictment against the defendants, charging them with
aiding and abetting each other in attempting to possess with
intent to distribute narcotics in violation of 21 U.S.C.
841(a)(1), 943 and 18 U.S.C. 2; aiding and abetting each
other in attempting to import narcotics into the United States in
violation of 21 U.S.C. 952(a), 963 and 18 U.S.C. 2; and
aiding and abetting each other in attempting to possess on board
a vessel of the United States with intent to distribute narcotics
in violation of 46 U.S.C. App. 1903(a), (b)(2)(c), (f), (j) and
18 U.S.C. 2.
At trial, the government elicited testimony from U.S.
Customs Service air interdiction officers who were assigned to
three aircraft operating off the southeast coast of Puerto Rico
on the night of January 4, 1995, and the morning of January 5,
1995. The officers were investigating what was perceived to be a
suspicious aircraft flying with its lights off and without a
flight plan from South America toward Puerto Rico. The
government s first witness was Leslie Robb, who operated the
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radar and Forward Looking Infrared camera ( FLIR )1 on one of the
aircraft, Omaha 42. Robb testified that after circling for
nearly forty minutes, the suspicious aircraft dropped several
objects into the water at 12:39 a.m. at a point approximately six
miles off the coast of Patillas, Puerto Rico. The splashes were
captured on a videotape of Omaha 42's FLIR, which was submitted
to the jury as evidence along with videotapes of the FLIRs from
the other two aircraft. The videotapes included the radio
communications among the air interdiction officers and other law
enforcement personnel that occurred contemporaneously with the
images produced by the FLIRs. These radio communications
revealed that immediately before the airdrop occurred, a vessel
was seen flashing its lights in the area near the suspicious
aircraft, and that the aircraft which had turned its lights on at
some point before the airdrop turned them off shortly thereafter.
The government s second witness, Raul Antonio Rivera-
Calleja ( Rivera ), operated the radar and FLIR systems on a
second plane, Omaha 02, which began looking for marine targets
after the airdrop had occurred. At approximately 1:04 a.m.,
Rivera acquired a vessel on radar approximately two miles from
the site of the airdrop. This target was the only one that
Rivera was able to locate on his radar, which covered a twenty-
five-mile radius around the aircraft. Rivera testified that
after he had located the vessel on radar, his fellow crew members
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1 The FLIR produces video images of objects based on the amount
of heat they emit. The FLIR can be integrated with a plane s
radar system to provide images of targets found on radar.
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informed him that they saw no lights on the surface of the water,
and that the vessel s navigation lights had to have been turned
off. Rivera further testified that shortly after acquiring the
vessel on radar, his FLIR showed two objects floating in the
water approximately twenty feet from the rear of the vessel.
The government s next witness, David Cruciger, was the
pilot in command of Omaha 02. Cruciger offered the following
description of the airdrop on direct examination:
Once again while flying in this pattern, we
received information from Omaha 42 that a
drop was taking place and that they were
seeing the splashes. Chris Thorton [the co-
pilot aboard Omaha 02] said it, directed my
attention out the right-hand window of the
aircraft. I banked the aircraft over so I
could see out in that direction; and with the
aircraft banked, I could see down into the
water a flashing light. It was described by
Omaha 42. As we watched the light, I saw an
aircraft or what I believed to be an aircraft
turn on its navigation recognition lights and
fly at low altitude over the lights that were
flashing in the water.
When asked during cross-examination whether he had seen the
lights before the drop occurred, Cruciger stated that he
believe[d] it was during the drop.
The government s fourth witness, John Alpers, operated
the radar and FLIR system on the third aircraft, Omaha 38.
Alpers testified that he located a vessel -- the same one next to
which Rivera s FLIR would later detect two objects floating in
the water -- on radar at approximately 12:45 a.m., approximately
two miles from the site of the airdrop, and that, according to
the co-pilot aboard Omaha 38, all of the vessel s lights were
out. Alpers also testified that although he located one object
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on his radar that he believed to be a reef, he located no other
vessels on his twenty-five-mile radar.
The government s witnesses testified that the vessel
remained stationary from the time Alpers acquired it on his FLIR
at 12:54 a.m., approximately three miles from the site of the
airdrop, until a coast guard helicopter arrived at approximately
1:13 a.m. and shined a bright light on it. They further
testified that the vessel began to move toward shore after the
coast guard helicopter illuminated it, and that the defendants
were found aboard the vessel when it arrived on shore and were
promptly arrested. Although no contraband was found aboard the
defendants vessel, the government introduced into evidence four
bales of cocaine that were found floating in the water in the
vicinity of the drop site. The first bale was found at
approximately 2:00 a.m. on January 5, 1996, and three more were
found at approximately 1:30 p.m. the same day tied together with
rope of a type found on the defendants vessel. Two of the
government s witnesses speculated that, following the airdrop,
the defendants had gathered the three bales that were found tied
together and, rather than bringing the bales aboard, placed them
in tow so as to facilitate disposal in the event the defendants
scheme was discovered.
The government also introduced into evidence a business
card found in defendant Rivera-Santiago s wallet, which was
discovered in his car, bearing the coordinates of a spot
approximately seven miles away from the site of the airdrop. In
addition, the government s witnesses testified that they found
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defendant Alamo-Silva s Toyota 4-Runner at his girlfriend s
house, which was accessible via a pathway to the beach and was
located approximately one-quarter of a mile away from the point
where the defendants arrived on shore. The keys to the 4-Runner
were found in the vehicle, which was parked with its back to the
water and its rear seats folded down. Finally, the government s
evidence indicated that the registration number painted on the
back of the vessel on which the defendants were found, which
belonged to defendant Rivera-Santiago, differed by two letters
from the number under which the vessel had been registered with
the Puerto Rico Department of Natural Resources.2
The defendants contended that they were out fishing on
the night of the airdrop and were simply caught in the wrong
place at the wrong time. They elicited testimony concerning
other vessels that might have been in the area at the time of the
airdrop but were not detected on radar, including a vessel found
abandoned on shore on the morning of January 5, 1995, that
contained marijuana residue. Rivera-Santiago testified that his
vessel was operating without navigation lights on the night in
question because the vessel s built-in navigation lights had been
damaged on a previous occasion and because he had stopped using
the portable navigation light he had recently purchased for the
boat. He explained that the portable navigation light wouldn t
stay fixed for a long time, would fall every time the boat
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2 The boat was registered under registration number PR0645BB,
but bore the number PR0645DD.
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jumped, and didn t work. 3 His testimony also indicated that he
began fixing one of the engines on the boat at approximately
11:00 p.m. with only the aid of a flashlight, and that the vessel
was already moving when the coast guard helicopter arrived at
1:13 a.m. Finally, the defendants elicited testimony concerning
the maximum speed of Rivera-Santiago s vessel, suggesting that it
might have been difficult for the boat to retrieve at least three
bales of cocaine and travel approximately two miles, as the
government s evidence suggested, during the six-minute interval
between the airdrop and the time Alpers detected Rivera-
Santiago s vessel on radar. They also argued this point to the
jury.4
The jury began deliberating late in the afternoon on
April 10, 1995, and, at 7:50 p.m. the following day, informed the
trial judge that it was unable to reach a verdict but wanted to
come back the next day to continue its deliberations. The next
morning, the jury submitted the following message to the court:
We wish to obtain the following information
from the transcription notes to clarify some doubts:
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3 During the government s rebuttal, the law enforcement agent
who impounded and operated the vessel following the defendants
arrest testified that he had no trouble using the portable
navigation light.
4 Counsel for defendant Alamo-Silva argued during closing
argument that Rivera-Santiago s vessel remained stationary from
12:45 a.m. until approximately 1:13 a.m. However, our review of
the record indicates, and the defendants brief acknowledges,
that Alpers acquired the vessel on radar approximately two miles
from the site of the airdrop at 12:45 a.m., and that he located
the vessel on his FLIR approximately three miles from the airdrop
at 12:54 a.m., by which time the vessel had stopped moving.
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1. The first time the suspect air craft
was detected in the fishing area (the
hour)
2. The time of the air drop
3. The time the suspect vessel was
detected in the fishing area
4. If there were any sign of
flashing lights from the suspect
aircraft and suspect vessel.
After trial counsel for defendant Alamo-Silva unsuccessfully
argued that providing answers to any of the jury s questions
would invade the province of the jury, the parties and the court
agreed on the responses to the first three questions. In
response to the fourth question, and at the government s request,
the trial judge elected to read back to the jury part of David
Cruciger s testimony. This decision came over the objection of
counsel for each of the defendants. Noting that Cruciger was the
only witness who testified that he saw flashing lights,5 defense
counsel asked that testimony from the witnesses who did not see
flashing lights be read into evidence, and further argued that it
was not clear what the jury meant by suspect vessel.
The trial judge addressed the jury as follows:
I have your four questions. Let me say that
the answer to two of your questions you have
to see the [videotape of the] FLIR; you
should see the FLIR. But I m going to answer
two questions. The first -- your first
question is the first time the suspect
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5 Although the audio portion of the FLIR videotapes contains
references to flashing lights from sea level and to a temporarily
illuminated light on the suspect aircraft, Cruciger was the only
witness to testify at trial that he saw lights from either
source.
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aircraft was detected in the fishing area,
the hour. That you may look into the FLIRs.
Then the time of the airdrops, there s
stipulation that it s 12:39 a.m., 12:39 a.m.,
time of the airdrop.
The third question, the time the suspect
vessel was detected in the fishing area, that
you have to look it up in the -- from the
FLIR tapes.
Fourth -- I m going to answer that question
now -- if there -- if there were any sign of
flashing lights from the suspect aircraft and
the suspect vessel, I m going to read you the
testimony of David Cruciger. Listen
carefully. [The court reporter then read back
the following portion of Cruciger s
testimony.]:
Once again while flying in this pattern,
we received information from Omaha 42
that a drop was taking place and that
they were seeing the splashes. Chris
Thorton, Officer Thorton said it,
directed my attention out the right-hand
window of the aircraft. I banked the
aircraft over so I could see out in that
direction; and with the aircraft banked,
I could see down into the water a
flashing light. It was described by
Omaha 42. As we watched the light, I saw
an aircraft or what I believed to be an
aircraft turn on its navigation
recognition lights and fly at low
altitude over the lights that were
flashing in the water.
[The trial judge continued.] Okay. Very
well. You may go back to your deliberations.
The jury returned guilty verdicts against the
defendants on all counts approximately two hours after the trial
judge answered its questions, apparently having eaten lunch in
the interim. Defendant Alamo-Silva was sentenced to prison for
295 months. Defendant Rivera-Santiago was sentenced to prison
for life.
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II. Discussion
II. Discussion
A. The Trial Judge s Response to the Jury s Fourth
A. The Trial Judge s Response to the Jury s Fourth
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Question
Question
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We first address the defendants contention that the
trial judge committed reversible error when, in response to the
jury s fourth question, he selected a portion of Cruciger s
testimony and had it read to the jury.
The Sixth Amendment guarantees a defendant in a
criminal case the right to a trial by jury. We have previously
noted that [u]ndeniably inherent in the constitutional guarantee
of trial by jury is the principle that a court may not step in
and direct a finding of contested fact in favor of the
prosecution regardless of how overwhelmingly the evidence may
point in that direction. United States v. Argentine, 814 F.2d
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783, 788 (1st Cir. 1987) (quoting United States v. Martin Linen
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Supply Co., 430 U.S. 564, 573 (1977)). Although the district
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court may, at its discretion, reread testimony where the jury
makes a request to have specific testimony reread, see, e.g.,
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United States v. Bennett, 75 F.3d 40, 46 (1st Cir.), cert.
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denied, 117 S. Ct. 130 (1996); United States v. Aubin, 961 F.2d
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980, 983-84 (1st Cir.), cert. denied, 506 U.S. 886 (1992), we
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have noted that the culling of testimony in response to a jury s
open-ended question may, in effect, make the court a finder of
fact, see Aubin, 961 F.2d at 983 (quoting United States v.
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Almonte, 594 F.2d 261, 265 (1st Cir. 1979)), and have found
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constitutional error where a district court s answer to a jury s
factual question had the effect of mandating that the jury reach
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a conclusion on a particular issue. Argentine, 814 F.2d at 787-
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88.
Our analysis of the trial judge s answer to the jury s
fourth question in the context of the evidence elicited during
the course of the trial compels us to conclude that the trial
judge usurped the jury s factfinding role as to the subject
matter of that question, and, in so doing, deprived the
defendants of their right to trial by jury. In reaching this
conclusion, we note that two of the vices we identified in
Argentine are not present here. First, the trial judge did not
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expressly represent that the parties had reached an agreement as
to the subject matter of the jury s question. Second, rather
than presenting his answer to the jury s question as
accomplished fact, the trial judge informed the jury that the
evidence he was recounting was the testimony of a particular
witness. See id. at 787. However, it is evident from a review
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of the record that the substance of the court s answer together
with the context in which it was delivered brought about the same
prohibited result that we found in Argentine for three reasons.
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First, the trial judge selected only a part of
Cruciger s testimony given on direct examination to be read in
response to the jury s question and, in so doing, necessarily
suggested to the jury that this testimony would provide the
answer to the jury s question. This suggestion had the effect of
both encouraging the jury to believe Cruciger and discouraging
the jury from considering and possibly crediting alternative
accounts of the events surrounding the airdrop. The record
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contains evidence that was inconsistent with, if not
contradictory to, Cruciger s assertion that he saw an exchange of
lights during the airdrop between the suspicious aircraft and an
object in the water. For example, Cruciger s testimony was at
odds with Rivera-Santiago s assertions that his vessel s built-in
navigation lights were not working and that he had stopped using
the portable navigation light that he had recently purchased. In
addition, Cruciger testified on direct examination that he began
looking for flashes of light from sea level after the suspect
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aircraft had begun dropping objects into the water and then
stated on cross-examination that he believed he saw lights during
the airdrop. However, the audio portion of the videotape
indicates that unidentified air interdiction officers viewed
flashing lights before any objects were dropped, and contains no
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mention of lights from sea level during or after the airdrop. At
a minimum, these inconsistencies raise questions about when or
whether Cruciger saw flashing lights from sea level and, if he
saw lights, whether those lights came from Rivera-Santiago s
vessel or from another vessel.
Second, the context in which the trial judge gave his
response to the jury s fourth question had the effect of placing
his imprimatur on the facts contained in that portion of
Cruciger s testimony that was read to the jury. It is
significant that the jury was posing questions in order to obtain
information from the record to clarify some doubts. In
answering the first three questions, the trial judge either
provided an unequivocal statement of fact to which the parties
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had stipulated (question no. 2) or directed the jury to the FLIR
videotapes where the answer to their questions could be found
(question nos. 1 & 3). However, in responding to the jury s
fourth question the trial judge began by stating I m going to
answer that question now, and then had part of Cruciger s
testimony read. The net effect of what the trial judge did was
to focus the jury s attention on only part of Cruciger s
testimony concerning flashing lights and away from other evidence
given by Cruciger and others that was relevant to a resolution of
the doubts the jury expressed in its note about the existence of
flashing lights from the air and from sea level.
Finally, by referring the jury to Cruciger s testimony,
the trial judge suggested to the jury that the suspect vessel
(the term used in the jury s question and throughout the trial to
describe the boat on which the defendants were found), and not
another vessel, was the source of the light that Cruciger claimed
to have seen. Although, as noted above, Rivera and Alpers
testified that Rivera-Santiago s vessel was the only one that
showed up on radar at the time of the airdrop, the defendants
presented evidence suggesting that there were other vessels in
the area. The trial judge s answer to the question confirmed an
assumption inherent in the jury s question, i.e., that the vessel
seen flashing its lights was the same suspect vessel that
Alpers picked up on radar six minutes after the airdrop occurred
and approximately two miles away.
For the foregoing reasons, we conclude that the trial
judge s response to the jury s fourth question invaded the
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province of the jury.6 We must next turn our attention to the
question of whether the district court s error can be termed
harmless. As we noted in Argentine, in cases involving errors
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of constitutional dimension the harmless-error inquiry focuses on
the existence of a reasonable possibility that the error at issue
influenced the jury in reaching the verdict. Argentine, 814 F.2d
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at 789 (citing Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).
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Phrased another way, we must now determine whether the
constitutional error was harmless beyond a reasonable doubt. Id.
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at 789; see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993);
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Chapman v. California, 386 U.S. 18, 23-24 (1967); United States
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v. Trenkler, 61 F.3d 45, 60 n.22 (1st Cir. 1995).7
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As we have previously noted, the jury in its message to
the trial judge sought specific factual information to clarify
some doubts. Therefore, we can reasonably infer from the
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6 While trial judges have discretion as to the manner in which
they respond to questions from a jury, great caution must be
exercised when a jury asks a factual question concerning the
evidence in a case. In view of the evidence presented during the
trial of this
case, an appropriate response to the jury s question would have
been an instruction to the jury that it must take its own
recollection of the evidence. See, e.g., Aubin, 961 F.2d at 983
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(trial judge did not abuse discretion where, in response to
factual question, he instructed the jury that as finder of fact
it was its responsibility to weigh and interpret evidence);
United States v. Hyson, 721 F.2d 856, 865 (1st Cir. 1983) (no
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abuse of discretion where, in response to factual question, judge
declined to reread relevant testimony and instructed jury to make
findings based on its recollection of the evidence).
7 The defendants do not contend that the district court s error
falls into the narrow category of constitutional defects that
foreclose all harmless error review. See Arizona v. Fulminante,
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499 U.S. 279, 306-12 (1991) (distinguishing between trial errors
that abridge defendant s constitutional rights and structural
defects affecting framework in which trial proceeds).
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context in which the jury asked the fourth question that some or
all of the jurors, after deliberating for a little more than one
day, entertained some doubts about the existence of flashing
lights from the suspect aircraft and suspect vessel. That
the jury had doubts about this issue is significant for two
reasons. First, the existence or non-existence of flashing
lights, their location, their source, and their timing are
matters that were central both to the government s and the
defendants theories of the case.
Second, the manner in which the trial judge culled the
evidence effectively determined the outcome of how the jurors
would resolve their doubts since they were directed to only part
of the evidence concerning lights (i.e., a portion of the
testimony of the only witness who testified that he saw lights)
instead of being instructed to consider and weigh all of the
evidence relating to that issue adduced at trial.8 The
defendants were entitled to have their theory of the case, as
developed through their evidence, presented to the jury on an
equal footing with the government s theory of the case. This did
not occur because the trial judge s response tipped the scales in
favor of the government s theory.
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8 The defendants, who contended they were out fishing on the
night in question, adduced evidence that they were operating
without navigation lights because the built-in lights were
previously damaged and the portable navigation light would not
stay fixed, that it was not unusual for fishermen to be without
lights, that there were other vessels in the area including one
found on shore with marijuana residue in it, and that the
government s time line, i.e., the six-minute span within which
certain events were supposed to have occurred, was not
reasonable.
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We also note that the jury had expressed to the trial
judge an inability to reach a verdict the night before posing its
questions and arrived at guilty verdicts two hours after
receiving the answers, raising an inference that the trial
judge s response influenced the verdicts. While such an
inference in and of itself is not controlling in our evaluation
of harmless error, it is a factor that can be weighed along with
other factors.
We have considered the trial judge s error and its
effects, as previously discussed, in the context of the entire
trial record. The government presented significant
circumstantial evidence pointing to the defendants guilt.
However, under the applicable standard the verdicts can stand
only if we find that the error was harmless beyond a reasonable
doubt. We cannot make such a finding. The government s case as
to the identity of the suspect vessel required a close
calculating and comparing of times, coordinates, and distances, a
process that might well have been shortcircuited by injection of
the incriminating aspect of the evidence as to flashing lights.
We conclude that in view of the context in which the fourth
question was asked, the significance of the issue raised by that
question to the outcome of the case, the response that was given,
and the context in which the response was given, there is a
reasonable possibility that the error at issue influenced the
jury in reaching its verdicts in this case. Therefore, the
verdicts cannot stand.
B. Evidentiary Issues
B. Evidentiary Issues
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Several of the evidentiary issues raised by the
defendants are likely to recur in the event of a retrial and
therefore we will addressnforcement officers who, not having been
qualified as experts, offered opinion testimony at trial based on
their experience.9 Specifically, the defendants object to the
testimony of John Alpers and Raul Rivera suggesting that items
dropped from an airplane and not otherwise gathered together
would have been further apart than the objects appearing on
Rivera s FLIR behind the suspect vessel; to U.S. customs agent
Roberto Escobar s testimony suggesting that the reason a wrong
number might be painted on the rear of a vessel would be to
hinder law enforcement authorities from identifying its owner;
and to Escobar s characterization of the coordinates of the
airdrop as being pretty close to those found on the back of the
business card found in Rivera-Santiago s wallet.
In United States v. Paiva, 892 F.2d 148 (1st Cir.
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1989), we noted that the modern trend favors the admission of
opinion testimony [from lay witnesses], provided it is well
founded on personal knowledge and susceptible to cross-
examination. Id. at 157 (permitting drug user to express
___
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9 The government contends that the evidence was properly
admitted under Rule 701, which provides:
If the witness is not testifying as an expert, the
witness testimony in the form of opinions or
inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the
witness testimony or the determination of a fact in
issue.
Fed. R. Evid. 701.
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opinion that substance she found was cocaine). We further
explained that the individual experience and knowledge of a lay
witness may establish his or her competence, without
qualification as an expert, to express an opinion on a particular
subject outside the realm of common knowledge. Id.; accord
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United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995)
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(based on experience, police officer could testify as lay witness
that it was common for drug traffickers to use weapons to protect
drugs; opinion was helpful to determination of whether defendant
was involved in drug trafficking).
After reviewing the record, we find no error in the
admission of the opinions of Rivera and Alpers concerning the
proximity of the bales to Rivera-Santiago s vessel. Both
witnesses testified that they had extensive experience as air
interdiction officers with the U.S. Customs Service, and were
competent to testify as to the behavior of objects dropped from
an airplane. Further, the testimony was helpful both to the
jury s understanding of the likelihood that two objects dropped
from an airplane would be close together after the airdrop and to
the jury s resolution of the question of the defendants
involvement in the airdrop.10
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10 We reject the defendants contention that the testimony of
Rivera and Alpers, which suggested to the jury that the bales
might have been dumped overboard, was impermissibly inconsistent
with the testimony from other government witnesses who suggested
that the bales had been tied together and placed in tow. This
inconsistency is not grounds for the exclusion of relevant
evidence, but, rather, is a matter properly to be explored on
cross-examination and ultimately to be resolved by the jury.
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Nor do we find error in the admission of Escobar s
statement concerning the numbers painted on the back of Rivera-
Santiago s vessel. Escobar testified at trial that, in addition
to other law enforcement experience, he had worked for a
smuggling unit of the U.S. Marshals Service for two years, during
which time he had been involved in approximately fifteen
missions. As such, he was entitled to draw on his law
enforcement experience in conveying opinion testimony to the
jury. Further, his testimony concerning the significance of the
incorrect registration number was helpful to the jury, which
might not have been aware of the existence of a central
registration system for sea vessels similar to that for
automobiles.11
However, we do find error in the trial judge s decision
to permit Escobar to testify that the coordinates found on the
back of the business card were pretty close to the coordinates
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11 Although the defendants rely on United States v. Montas, 41
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F.3d 775 (1st Cir. 1994), cert. denied sub nom. F lix-Montas v.
_____________________ ____________
United States, 115 S. Ct. 1986 (1995), to support their argument,
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we believe that Montas is distinguishable from the instant case.
______
In Montas, a federal drug enforcement agent who had been
______
qualified as an expert testified that in ninety-nine percent of
the cases in which he had worked that involved the seizure of
drugs at an airport, the passenger involved had been traveling
under a false name. He further testified that it was obvious
that a passenger trying to smuggle drugs would use a false name
to avoid detection. Id. at 784. In concluding that the
___
admission of this testimony was likely beyond the limit of
admissibility, we noted the danger of unfair prejudice resulting
from the use of an expert witness to corroborate the government s
case. Id. at 786. However, the risk of prejudice that we
___
identified in Montas is less severe where, as here, the witness
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has not been qualified as an expert. Moreover, unlike Montas,
_______
the testimony at issue in the instant case does not suggest a
definite correlation between a suspicious characteristic and any
illegal activity.
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of the airdrop site. Immediately prior to offering this
conclusion, Escobar testified that he did not understand what
some of the numbers on the business card meant and acknowledged
that he was not an expert in coordinates. In addition, his
testimony that the coordinates were pretty close represented
only his characterization of the distance between the two points.
As presented, the witness s testimony lacked an appropriate
foundation and his conclusion was of little aid to the jury in
understanding the evidence.
The defendants also challenge as unfairly prejudicial
and without foundation the testimony of a U.S. drug enforcement
agent, who, not having been qualified as an expert, stated on
direct examination that the street value of the cocaine found at
sea may have exceeded $18 million. However, we have recently
stated that [t]here is little dispute that such information may
aid in proving intent to distribute. United States v. Rivera,
_____________ ______
68 F.3d 5, 8 (1st Cir. 1995), cert. denied, 116 S. Ct. 970
_____________
(1996). In addition, in this case the evidence was relevant to
bolster the government s claim that a smuggler would not drop
valuable property into the water unless a specific target was in
the area. Finally, as we noted in Rivera, DEA agents are
______
especially qualified, and need not be certified as experts, to
testify about street value. Id. We see no error in the
___
admission of this testimony.
C. Sentencing Issues
C Sentencing Issues
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-22-
Since the court has determined that the defendants
convictions must be vacated, there is no need to address the
sentencing issues raised on appeal.
-23-
III. Conclusion
III. Conclusion
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The defendants convictions are vacated. The cases are
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remanded for a new trial.
________
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