USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-1324
UNITED STATES,
Appellee,
v.
MANUEL AMADO GUERRERO,
Defendant, Appellant,
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No. 96-1325
UNITED STATES,
Appellee,
v.
CRISPINIANO OSPINA,
Defendant, Appellant,
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No. 96-1326
UNITED STATES,
Appellee,
v.
ORLANDO PILCO,
Defendant, Appellant,
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No. 96-1327
UNITED STATES,
Appellee,
v.
MANUEL RIVAS,
Defendant, Appellant,
_____________________
No. 96-1651
UNITED STATES,
Appellee,
v.
DIMAS HERNANDEZ,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Luis E. Pabon Roca, by Appointment of the Court, for appellant
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Amado Guerrero.
Peter J. Satz-Hanley, by Appointment of the Court, for appellant
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Crispiniano Ospina.
David A.F. Lewis, by Appointment of the Court, for appellant
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Orlando Pilco.
Miguel A.A. Nogueras-Castro, Assistant Federal Public Defender,
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with whom Gustavo A. Gelpi, Assistant Federal Public Defender, and
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Benicio Sanchez Rivera, Federal Public Defender, were on brief for
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appellant Manuel Rivas.
Irma R. Valldejuli, by Appointment of the Court, for appellant
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Hernandez.
Jacabed Rodriguez Coss, Assistant United States Attorney, with
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whom Jose A. Quiles, Assistant United States Attorney, and Guillermo
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Gil, United States Attorney, were on brief for appellee.
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May 30, 1997
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STAHL, Circuit Judge. A jury convicted
STAHL, Circuit Judge.
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defendants-appellants Manuel Amado Guerrero, Crispiniano
Ospina, Orlando Pilco, Manuel Rivas, and Dimas Hernandez each
of one count of aiding and abetting each other in the
possession with intent to distribute marijuana on board an
ocean vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. app. 1903(a) and 18
U.S.C. 2. On appeal, the defendants raise various issues
with respect to their convictions and sentences. Many of the
issues they ask us to review were not properly brought to the
district court's attention. Finding no merit to their
contentions, we affirm the district court's judgment in all
respects.
I.
I.
__
Facts and Prior Proceedings
Facts and Prior Proceedings
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At trial, the government established the following
facts.1 On the evening of June 13, 1995, the United States
Coast Guard Cutter MELLON was conducting routine counter
drug-trafficking patrol on the high seas off Colombia, South
America. At that time, the weather conditions included
twenty-knot winds and eight-foot swells. Lt. Comdr. Vincent
Morgan Weber commanded the heavily armed 378-foot-long
vessel, which was equipped with two smaller boats: a
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1. We recount the trial evidence in the light most favorable
to the prosecution. See United States v. Ruiz, 105 F.3d
___ _____________ ____
1492, 1495 (1st Cir. 1997).
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motorized surfboat, the MELLON I, and a rigid hull inflatable
boat, the MELLON II.
At approximately 9:00 p.m., forty miles north of
the Colombia's Guajira Peninsula, the cutter MELLON made
radar contact with an unidentified vessel.2 As the MELLON
approached the craft, it directed its search lights upon it.
Given the difficult seas and the distance from the nearest
shore, Lt. Comdr. Weber expected to observe a cargo boat.
Instead, he discerned a forty-foot long, flagless
recreational craft, travelling in a northeast direction.
The boat rode low in the water, not more than eight
feet above the surface. Its cabin was constructed much lower
than normal for that type of recreational vessel. The
vessel's "low profile" enabled it to ride in the ocean s
swells and avoid most radar detection. The fiberglass boat's
hull was light blue below the waterline and white above. It
sported two antennae, a common VHF radio antenna and a high-
frequency antenna for long distance communications. The
vessel was operating without its running lights on, and no
one was topside.
After several unsuccessful attempts to hail the
vessel, Lt. Comdr. Weber established radio communications
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2. The evidence also suggested radar contact with another
vessel, some two miles away from the first boat, but the
Coast Guard chose not to pursue any interaction with that
vessel.
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through one of the cutter's interpreters. The vessel's
master, Pilco, informed the Coast Guard that the boat,
identified as the BLACK CAT,3 was of Honduran registry.
Pilco stated that his last port of call was "Panama" and that
his next port of call was "Honduras." Weber found these
statements suspicious because the BLACK CAT was headed away
from the stated destination and because specific cities, not
countries, usually are identified as ports of call. Pilco
did not respond to Weber's subsequent request to identify the
specific cities in which the ports of call were located.
When asked if the BLACK CAT carried any cargo,
Pilco answered, "no." Lt. Comdr. Weber had just been
advised, however, that personnel aboard the MELLON saw cargo
inside the boat's cabin. The vessel s low position in the
water further belied Pilco's claim. To clarify the point,
Weber again asked Pilco whether or not the BLACK CAT carried
cargo. Pilco again responded in the negative. Weber then
requested permission to board, to which Pilco replied, in an
agitated voice, "wait a minute, wait a minute, wait a
minute." Weber repeated the request a few minutes later, but
received the same response.
About the same time, Coast Guard personnel observed
someone on the BLACK CAT throwing objects overboard. A boat
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3. Pilco stated the vessel's name in Spanish, "GATO NEGRO."
Following the parties' lead, we use the English translation
throughout.
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team dispatched on the MELLON II retrieved from the ocean
pieces of a navigational chart depicting the United States
Virgin Islands area east of Puerto Rico. Lt. Comdr. Weber
then dispatched a boarding team in the MELLON I to approach
the BLACK CAT.
When the MELLON I came alongside the vessel,
members of the boarding team noticed two oversized, custom-
made fuel tanks covering most of the aft deck. In fact, a
person could not enter the cabin area without crawling over
the fuel tanks. Peering into the cabin area with the aid of
a spotlight, the boarding team observed several crew members
and numerous white-colored bales.
The boarding team failed in its initial attempts to
get the attention of the crew, which, for a time, remained
inside the cabin. Soon, however, the crew members began to
emerge, one by one, carrying duffel bags. One member placed
his hand underneath his shirt, and others seemed to be
reaching inside their bags. These actions alarmed the
boarding team, which quickly advised the crew (in Spanish and
English) to keep their hands in plain sight. Concerned for
the boarding team's safety, Gunner's Mate Edward West pointed
an M16 service rifle toward the vessel. Perhaps because the
choppy seas made communication difficult, the BLACK CAT's
crew did not comply with the request to keep their hands in
view. When a crew member again began to reach towards his
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duffel bag, the boarding team pulled away from the BLACK CAT
inorder toreassess thesituation anddiffuse therising tension.
When all five crew members of the BLACK CAT were
topside, the MELLON I again pulled up to the vessel. The
boarding team had no weapons drawn at the time, and the
situation was much calmer. Ensign Joseph Sundland, the
boarding officer, told Pilco that the Coast Guard wanted to
perform a safety inspection on the boat. Pilco consented.
The boarding process, however, proved to be somewhat
difficult. There was very little space available on the boat
for boarding, and the rough sea conditions had caused fuel to
spill on the stern, making for unsure footing. Moreover, the
construction of the vessel's cabin left no room to walk
around it on deck. These circumstances made it dangerous for
the BLACK CAT's crew members, who had no life jackets, to
stand topside during the boarding. To facilitate a safe
boarding, the boarding team had the crew lie down on top of
the cabin.
Once on board, members of the boarding team asked
Pilco again if he had any objection to the Coast Guard's
presence on board the vessel. Pilco repeated that he had no
objection. Sundland asked Pilco for permission to go below
into the cabin to check for safety hazards. Pilco consented,
and led Ensign Sundland and Firearm Rafael Rivera (who served
as interpreter) over the fuel tanks and into the cabin.
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Numerous bales covered with white plastic filled almost all
of the interior space, with the exception of a small sleeping
area between the bales and the ceiling and a narrow crawl
space forward. One of the bales had been placed by the helm,
apparently to serve as a seat for the crew member steering
the vessel. The cabin also held many food containers, mostly
unopened, and a cooler almost full of fresh ice and sodas.
Sundland noticed high-quality, expensive radio gear on the
cabin's wall.
The bales emitted no perceptible odor, rather,
intense fumes from fuel leaking out of the poorly constructed
tanks almost overwhelmed the men in the cabin. Ensign
Sundland sought and received Pilco's permission to open one
of the bales. He cut through heavy plastic and a cardboard
box, and discovered nine individually wrapped packages
inside. As he opened one of the smaller, plastic-wrapped
packages, he asked Pilco if he knew what the package
contained. Pilco answered that he thought it was marijuana
and that someone had hired him to take it from Colombia to an
undisclosed location. Field testing verified that the
packages in fact contained marijuana.
Following a radio inquiry to Honduran authorities,
at approximately 9:00 p.m. on June 14 (some twenty-four hours
after the Coast Guard initially contacted the BLACK CAT), the
Honduran government confirmed the vessel's Honduran registry
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and authorized the Coast Guard to enforce United States law
against the vessel and her crew.4 The Coast Guard placed the
defendants under arrest and seized the contraband. After
securing the vessel's crew and cargo aboard the MELLON, the
Coast Guard attempted to tow the BLACK CAT in the MELLON's
wake, but the BLACK CAT took on water and began to sink.
Because the boat's presence just beneath the ocean's surface
would have created a navigation hazard, Coast Guard personnel
sank the vessel completely with machine gun fire.
In total, the Coast Guard seized 100 bales of
marijuana, weighing a total of 5,596 pounds and worth $6-8
million wholesale, $25-41 million retail. Although the Coast
Guard found no weapons on board the BLACK CAT, it seized a
Magellan global positioning system ("GPS"), an electronic
navigation device that determines a vessel's latitude and
longitude position. When asked, Pilco could not present any
cargo manifests or other commercial papers.
According to the government's witnesses, commercial
cargo normally is not transported in the manner in which the
unlabeled bales were bundled and arranged on the BLACK CAT.
On the contrary, the bales had been packed in a manner
typical for contraband. In particular, the evidence
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4. At trial, the government introduced a certification from
the United States Secretary of State and his designee to
prove the Honduran government's confirmation of registry and
authorization to enforce U.S. law.
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suggested that the waterproof packaging was intended to
protect the contraband during vessel-to-vessel transfers on
the high seas. Transfers of this type often require the
assistance of long distance radios and sophisticated
navigational equipment, such as the Magellan GPS, to pinpoint
the time and place of the rendezvous.
Following the government's case in chief,
defendants Pilco and Rivas testified on their own behalf.
Pilco asserted that he had been hired to transport what he
thought was a coffee cargo -- at $5 per bale -- to Aruba, and
that he set sail roughly around midnight on June 12, 1995.
He testified that during the initial contact with the cutter
MELLON, he did inform the Coast Guard that the BLACK CAT was
carrying cargo. He also claimed that he had told the Coast
Guard that his last port of call was "Puerto Panama," located
on Colombia's Guajira Peninsula, and that his destination was
"Aruba," not "Honduras." He denied telling Ensign Sundland
that he thought the bales contained marijuana, and stated
that he had no cargo manifests or commercial papers because
the person who hired him, rather than a maritime agency, was
to receive the shipment.
Rivas testified that he was an experienced seaman
who usually worked on merchant ships. For the BLACK CAT
voyage, he had been hired for $200 as a helmsman. He stated
that he met the rest of the crew for the first time after
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being driven to Puerto Panama on the Guajira Peninsula.
Rivas could not state with any specificity the location of
Puerto Panama. He asserted that the bales were already
inside the cabin when he arrived at the boat dock and that he
noticed nothing unusual about them. Rivas also claimed that
he did not hear the word "marijuana" until it was uttered by
one of the Coast Guard officers.
At the close of all the evidence, the district
court denied the defendants' motions for acquittal.
Subsequently, the jury found each defendant guilty, under 46
U.S.C. app. 1903(a), of aiding and abetting each other in
the possession -- with intent to distribute -- of marijuana
on board a vessel. On appeal, Pilco contends that the
involuntariness of his statements to the Coast Guard rendered
the statements inadmissible against him at trial. All
defendants argue that a certification from the Secretary of
State was inadmissible to prove the United States'
jurisdiction over the vessel. With the exception of Pilco,
the defendants also claim that the government failed to prove
their knowing participation in the drug trafficking offense.
Ospina, Rivas, and Hernandez claim error in the court s jury
instructions, and Hernandez further argues that the Coast
Guard's eventual destruction of the vessel violated his due
process rights. Last, Rivas and Ospina challenge the court s
sentencing determinations.
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II.
II.
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Admission of Pilco's Statements at Trial
Admission of Pilco's Statements at Trial
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Pilco contends that he did not voluntarily make the
incriminatory statements to the Coast Guard after they
boarded the BLACK CAT and that the use of those alleged
statements at trial violated his right to due process.
Specifically, Pilco relies on the following facts. The
cutter was over 370-feet long and heavily armed while the
BLACK CAT was only 40-feet long and unarmed. At one point, a
member of the Coast Guard boarding team pointed an M16 rifle
at the BLACK CAT crew. Finally, upon boarding, the boarding
team had the crew lie down on top of the boat because of the
dangerous seas.
Following a voluntariness hearing pursuant to 18
U.S.C. 3501(a),5 during which Ensign Sundland testified,
the district court found that Pilco voluntarily consented to
both the boarding and the subsequent cabin inspection. The
court ruled that the boarding, coupled with Ensign Sundland's
non-threatening inquiries, amounted neither to custody nor
coercion. The court further observed that, at the time of
the statement, Pilco could have requested the boarding team
to leave, and the team would have complied. Thus, the court
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5. 18 U.S.C. 3501 requires a trial judge to conduct a
hearing out of the jury's presence to determine the
voluntariness and admissibility of a confession or self-
incriminating statement made during detention or arrest.
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concluded, the statement was voluntary within the meaning of
3501.6
The ultimate voluntariness determination involves a
question of law subject to plenary review. United States v.
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Cleveland, 106 F.3d 1056, 1064 (1st Cir. 1997). We
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"scrutinize[] a district court's factual findings, including
its credibility determinations, for traces of clear error."
United States v. Valle, 72 F.3d 210, 213-14 (1st Cir. 1995).
_____________ _____
Upon careful examination of the evidence introduced
at the 3501 hearing, we find no clear error in the court's
subsidiary factual findings regarding the voluntariness of
Pilco's statement. Ensign Sundland's testimony, the
credibility of which was a matter for the court, see Valle,
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72 F.3d at 214, plausibly established that the boarding team
members had no weapons drawn at the time of the boarding
request, that Pilco freely consented to the boarding and
search, and that his demeanor was "very calm" when he granted
Ensign Sundland permission to inspect the cabin and to open a
bale. Examining the totality of the circumstances, we cannot
say that Pilco's will was "overborne so that the statement
was not his free and voluntary act." United States v.
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Jackson, 918 F.2d 236, 241 (1st Cir. 1990) (internal
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6. We note that Pilco only challenges the voluntariness of
his statements under 18 U.S.C. 3501. His argument does not
touch upon the absence of Miranda warnings or the manner in
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which any potential Miranda issue affects his 3501 claim.
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quotation marks and citation omitted). See Schneckloth v.
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Bustamonte, 412 U.S. 218, 225-27 (1973) (discussing totality-
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of-circumstances approach when determining voluntariness of a
confession); see also United States v. Kimball, 25 F.3d 1, 8
___ ____ _____________ _______
(1st Cir. 1994) (finding consent voluntary where defendant
expressly agreed to accompany police to station, never
indicated an unwillingness to do so, and police did not
coerce or intimidate defendant into going with them).
Therefore, we agree with the district court that
Pilco's statement was voluntary, and thus, admissible at
trial.7
III.
III.
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Sufficiency of the Evidence
Sufficiency of the Evidence
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The government charged the defendants with aiding
and abetting each other in the violation of 46 U.S.C. app.
1903(a). To prove the defendants' violation of 1903(a),
the government needed to prove, beyond a reasonable doubt,
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7. 18 U.S.C. 3501 does not require the suppression of
involuntary statements unless the person was "under arrest or
other detention" at the time he made the statement. 18
U.S.C. 3501(d). Because we find that Pilco voluntarily
made the incriminating statement, we need not address the
question whether he was in custody within the meaning of
3501(d). We note, however, that the consensual nature of
the boarding renders the existence of this threshold
requirement highly unlikely. Cf. United States v. Elkins,
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774 F.2d 530, 535 n.3 (1st Cir. 1985) (defendants not "in
custody" during routine boarding and inspection of American
flagship even though crew was "confined to one section of the
boat during the lengthy Coast Guard inspection"); United
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States v. Lopez, 709 F.2d 742, 745 n.3 (1st Cir. 1983)
______ _____
(suggesting similar conclusion).
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that: (1) the BLACK CAT was "subject to the jurisdiction of
the United States"; (2) the material found on the vessel was
a controlled substance; and (3) the defendants knowingly or
intentionally possessed the controlled substance with the
intent to distribute it. 46 U.S.C. app. 1903(a). See
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United States v. Piedrahita-Santiago, 931 F.2d 127, 130 (1st
_____________ ___________________
Cir. 1991).
The defendants moved for judgment of acquittal,
pursuant to Fed. R. Crim. P. 29, after the conclusion of the
government's case in chief and again after the close of all
the evidence. The district court denied both motions. While
the defendants do not dispute the evidentiary sufficiency of
the government's proof of the second element, they raise
challenges regarding the first and third elements.
A. Standard of Review
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We review the Rule 29 determination de novo,
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resolving any evidentiary conflicts or credibility issues in
the government's favor. See United States v. Ruiz, 105 F.3d
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1492, 1495 (1st Cir. 1997). If the evidence, viewed under
this lens, "permits a rational jury to find each essential
element of the crime charged beyond a reasonable doubt, then
the evidence is legally sufficient." United States v.
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Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied, 116 S. Ct.
______ _____ ______
522 (1995). In this analysis, "[w]e defer, within reason, to
inferences formulated by the jury in the light of its
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collective understanding of human behavior in the
circumstances revealed by the evidence." United States v.
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Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990).
________________
Because Pilco and Rivas presented a defense (by way
of their own testimony), they have waived review of their
initial Rule 29 motions, made after the government's case in
chief. See Ruiz, 105 F.3d at 1495 n.1. For that reason, in
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reviewing their Rule 29 appeal, "we consider, in the light
most favorable to the verdict, the evidence presented in the
defense case." Id. (citing 2 Charles A. Wright, Federal
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Practice and Procedure 463, at 643-45 (1982)).8
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B. United States Jurisdiction Over the Vessel
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The first element of a 1903 offense requires the
government to prove that the BLACK CAT was "a vessel subject
to the jurisdiction of the United States." See Passos-
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Paternina, 918 F.2d at 981; Piedrahita-Santiago, 931 F.2d at
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129 (stating that the jury determines the jurisdictional
question under 1903). Vessels subject to United States
jurisdiction include "a vessel registered in a foreign nation
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8. It is unclear whether or not the non-testifying
defendants, Guerrero, Ospina, and Hernandez, intended Pilco's
and Rivas' testimony to constitute defense-evidence as to
them. While the non-testifying defendants' attorneys did not
participate in the examination of Pilco and Rivas (except for
a couple of objections), they also did not expressly rest
their case until after Pilco's and Rivas' testimony. Because
the evidence the government presented in its case in chief is
sufficient to convict the non-testifying defendants, we need
not resolve the issue.
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where the flag nation has consented or waived objection to
the enforcement of United States law by the United States."
1903(c)(1)(C). Section 1903 specifically provides that the
foreign nation's consent "may be obtained by radio,
telephone, or similar oral or electronic means, and may be
proved by certification of the Secretary of State or the
Secretary's designee." 1903(c)(1).9
To prove that the government of Honduras authorized
the enforcement of United States law against the BLACK CAT
and her crew, the government introduced various Department of
State documents in which Joseph A. Conroy, Jr., the Secretary
of State's designee for 1903 certifications, certified to
the events leading to the Honduran government's waiver of
objection. In pertinent part, Conroy certified that Captain
B.J. Niesen, Coast Guard Liaison Officer to the State
Department's Bureau of International Narcotics and Law
Enforcement, contacted Major John C. Sumner of the U.S.
Embassy in Honduras to request the Embassy to inform the
Honduran government of the contraband on board the BLACK CAT,
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9. We analyze this case under the pre-1996 version of 46
U.S.C. app. 1903, pursuant to which the defendants were
tried and convicted. We acknowledge that the 1996 amendments
to 1903 provide that the Secretary of State's certification
"conclusively" proves a foreign nation's consent, and that
United States jurisdiction over vessels is no longer an
element of an offense, but rather, a preliminary question of
law for the trial judge. See 46 U.S.C. app. 1903(c) & (f)
___
(Supp. 1997). We express no opinion as to the scope,
validity or interpretation of these amendments.
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to receive confirmation of the claim of Honduran registry,
and to seek authorization for the enforcement of United
States law. Conroy certified that Major Sumner subsequently
contacted Captain Niesen and reported the following: (1) Lt.
Claudia Castilla, Assistant Director of the Honduran Maritime
Directorate, had -- "on behalf of the Government of Honduras"
-- authorized the boarding and searching of the vessel; (2)
Javier Ponce of the Honduran Merchant Marine confirmed the
BLACK CAT's Honduran registry; and (3) Ivan Flores, Head of
the Honduran Maritime Security, had -- "on behalf of the
Government of Honduras" -- authorized the United States
government to enforce United States law against the vessel,
crew and contraband.
At trial, the defendants argued against the
admissibility of these documents on hearsay grounds and
complained that the government failed to produce a document
from the Honduran government confirming that nation's
consent. The district court disagreed with the defendants'
position and admitted the documents as sufficient proof of
the jurisdictional element. On appeal, Guerrero, Rivas,
Hernandez and Ospina perfunctorily challenge circuit
precedent dispensing with the hearsay argument.
Additionally, Pilco raises a new argument, viz, that the
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government failed to establish that Lt. Claudia Castilla,
Javier Ponce, and Ivan Flores had the authority of the
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Honduran government to confirm registry and consent to law
enforcement action.
We have previously found the hearsay argument
unavailing both because 1903's language reveals Congress'
explicit contemplation of the use of "what might normally be
considered 'hearsay'" to prove jurisdiction, United States v.
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Romero, 32 F.3d 641, 649 (1st Cir. 1994), and because "[t]he
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State Department Certification falls squarely within Fed. R.
Evid. 803(8)(A)," id. at 650. See Fed. R. Evid. 803(8)(A)
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(excepting from the hearsay rule public agency statements "in
any form" setting forth "the activities of the office or
agency"); see also United States v. Mena, 863 F.2d 1522, 1531
___ ____ _____________ ____
(11th Cir. 1989) (explaining that foreign government's
expression of consent "is not hearsay at all but rather a
verbal act, similar to the utterances involved in making a
contract, to which the law attaches independent
significance"). We see no reason to alter Romero's reasoning
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in this respect.
We also find unavailing the defendants' trial
contention that the government was required to procure and
introduce a written statement of no objection from the
Honduran government. While the government may prove a
foreign government's consent through a number of alternative
means, see Mena, 863 F.2d at 1531, section 1903 plainly
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indicates the sufficiency of the Secretary of State's
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certification to prove that fact. See 46 U.S.C. app.
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1903(c)(1) (stating that the foreign nation's consent "may
be proved by certification of the Secretary of State or the
Secretary's designee"); Romero, 32 F.3d at 649 (explaining
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that 1903 "was designed to ease evidentiary requirements
for the government by avoiding the time-consuming and
burdensome task of obtaining official documentation from the
claimed country of registry").
We are equally unpersuaded by Pilco's attempt to
transform his trial argument into his present contention:
that the certification was inadmissible because the
government did not show the authoritative status of the
persons in Honduras who authorized United States' law-
enforcement action. Because Pilco failed to raise this
argument below, we review for "plain error" and reverse only
if an "obvious" or "clear" error exists that affects
"substantial rights." United States v. Olano, 507 U.S. 725,
_____________ _____
734 (1993). See Fed. R. Crim. P. 52(b).
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In Romero, the Colombian government refuted a claim
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of Colombian registry, thus rendering the vessel "stateless"
and therefore subject to United States jurisdiction under 46
U.S.C. app. 1903(c)(1)(A). See 32 F.3d at 647-48. The
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government proved the jurisdictional element through a State
Department certification, much like the one at issue here,
explaining the events leading up to Colombia's refutation of
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registry. See id. at 648. We reasoned that the statutory
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scheme of permitting proof of certain jurisdictional facts
through certification meant that "the government need not
prove that the vessel is in fact without registry in another
country, nor must it prove that the foreign nations' denial
or refutation of registry is valid, legitimate, or otherwise
properly made." Id. at 649. We declined to decide whether a
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defendant's endeavor to prove actual registry facts would be
irrelevant under the statutory scheme, and expressly reserved
the questions whether and when a defendant may challenge "the
actions of foreign nations in situations that might warrant
determination, probably by the court, as to whether a proper
certification was being offered." Id. at 649 n.3.
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In this case, Pilco seeks to question the validity
of the Honduran government's consent by requiring
clarification of the source's authority. His challenge
touches upon the preserved issue in Romero, i.e., whether and
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to what extent a defendant may look behind the State
Department's certification to challenge its representations
and factual underpinnings. We have not yet had occasion to
resolve the issue, and the "plain error" standard of review
does not call upon us to correct unobvious errors. See
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Johnson v. United States, 117 S. Ct. 1544, ___, No. 96-203,
_______ _____________
1997 WL 235156, at *6 (U.S. May 12, 1997) (indicating that,
to be "plain," the error must be clear at least at the time
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of appellate review ). Moreover, Pilco does not raise a
colorable claim that the certification was prepared
fraudulently or in bad faith. See Romero, 32 F.3d at 649
___ ______
n.3. Thus, we decline to decide whether a defendant may
contest the authority of the source of the consent or whether
Congress intended to leave that matter to the State
Department's expertise.
In the absence of error, plain or otherwise, in the
district court's admission of the Secretary of State's
certification, we find the evidence sufficient to prove the
first element of 18 U.S.C. 1903(a).
C. Knowing Participation
_________________________
Rivas, Guerrero, Ospina, and Hernandez claim that
the government failed to prove the third element of a
1903(a) offense, their knowing possession of a controlled
substance with the intent to distribute it. While they do
not dispute the fact that they were hired as crew members to
assist in the BLACK CAT's shipping of cargo, they assert that
the evidence was insufficient to establish that they knew the
bales contained contraband. Absent that knowledge, they
argue, their "mere presence" aboard the BLACK CAT could not
rise to the level of aiding and abetting the drug-trafficking
offense.
To prove aiding and abetting liability under 18
U.S.C. 2, the government needed to establish that the
-22-
22
defendants "'participated in the venture and sought by their
actions to make it succeed.'" United States v. Steuben, 850
_____________ _______
F.2d 859, 864 (1st Cir. 1988) (quoting United States v.
_____________
Quejada-Zurique, 708 F.2d 857, 859 (1st Cir. 1983)). "'Mere
_______________
presence at the scene or even knowledge that the crime is
being committed is generally insufficient to establish aiding
and abetting.'" Steuben, 850 F.2d at 864 (quoting Quejada-
_______ ________
Zurique, 708 F.2d at 859).
_______
The question whether the evidence sufficiently
establishes a defendants' knowledge of the presence of a
controlled substance is distinct from, although related to,
the issue of a defendant's level of participation in a drug-
trafficking venture. Thus, for example, even when the
government proves that a defendant knew that her residence
was used by a co-occupant to sell drugs, the government must
additionally prove that she participated criminally in the
venture. See United States v. Ocampo, 964 F.2d 80, 82 (1st
___ ______________ ______
Cir. 1992) (involving conspiracy charge); United States v.
______________
Hyson, 721 F.2d 856, 862-63 (1st Cir. 1983) (same). In such
_____
cases, proof of sufficient participation in the crime, as
well as knowledge of it, is required to convict; the
defendant's "mere presence" at the scene of criminal activity
is not enough. By like token, where, as here, a defendant
actively participates in a venture, but denies any knowledge
-23-
23
of the venture's illegal nature, the government must
adequately prove knowledge, more so than participation.
With the exception of its case against Pilco, the
government largely relied upon circumstantial evidence to
prove the defendants' knowing participation in the
transportation a controlled substance. In circumstantial
cases such as this one, the evidence is sufficient to convict
if it adequately supports "the requisite 'two-step
inference'": (1) that the vessel was engaged in obviously
illegal activity and (2) that each defendant was ready to
assist in the criminal enterprise. United States v. Jimenez-
_____________ ________
Perez, 869 F.2d 9, 11 (1st Cir. 1989) (quoting Steuben, 850
_____ _______
F.2d at 867). We refrain from second-guessing the jury's
inferences and ensuing conclusions drawn from circumstantial
evidence where "the inferences derive support from a
plausible rendition of the record" and where "the conclusions
flow rationally from those inferences." United States v.
______________
Spinney, 65 F.3d 231, 234 (1st Cir. 1995).
_______
1. Knowledge of Controlled Substance
_____________________________________
The defendants place great weight on the absence of
evidence that the bales emitted any odor of marijuana. They
reason that without this evidence, a jury could not
rationally infer their knowledge of the bales' contents. We
have eschewed, however, a myopic inquiry into whether "one
particular indication of knowledge (such as a smell) did, or
-24-
24
did not, exist." United States v. Robinson, 843 F.2d 1, 8
______________ ________
(1st Cir. 1988). Instead, we must "look[] at the evidence as
a whole in the light most favorable to the government, and
leav[e] to the jury the power to make any reasonable set of
common sense assumptions about the working of human nature."
Id. (internal quotation marks and citations omitted). See
___ ___
United States v. Molinares-Charris, 822 F.2d 1213, 1220 (1st
_____________ _________________
Cir. 1987) (finding circumstantial evidence of defendant's
active participation in illegal cargo transport sufficient to
prove knowing participation even assuming marijuana "was
hidden in scent as well as in sight").
Thus, in the absence of evidence of marijuana odor,
we turn to other factors to determine whether or not the
government sufficiently established the crew's knowledge of
the presence of a controlled substance. We have previously
looked to factors such as the closeness of the crew's
relationship, the length of the voyage, the size and
condition of the vessel, the quantity of marijuana, and the
absence of a legitimate purpose for the voyage. See
___
Robinson, 843 at 8-9; see also Molinares-Charris, 822 F.2d at
________ ___ ____ _________________
1219-20; United States v. Lopez, 709 F.2d 742, 747 (1st Cir.
_____________ _____
1983). These factors, while not exhaustive, indicate that
where the circumstantial evidence permits a jury to conclude
that activities aboard a vessel concern the obvious presence
of contraband, the jury reasonably may infer the crew's
-25-
25
knowing participation in the venture. See Molinares-Charris,
___ _________________
822 F.2d at 1218; Quejada-Zurique, 708 F.2d at 859-860.
_______________
In this case, although the bales of marijuana had
been packaged carefully and emitted no odor, the surrounding
facts permit a jury finding that the BLACK CAT was
conspicuously involved in the illegal transport of a
controlled substance. According to the trial evidence, the
vessel's low-profile construction signalled its plain purpose
to avoid detection. See United States v. Romero, 32 F.3d
___ _____________ ______
641, 644 (1st Cir. 1994) (involving similarly constructed
vessel). The vessel had been equipped with expensive and
sophisticated radio and navigational gear that, the testimony
suggested, was generally intended to assist in long-distance
voyages and unusual for this small recreational vessel. See
___
id.; Passos-Paternina, 918 F.2d at 985. The
___ ________________
disproportionately large fuel tanks awkwardly placed on the
aft deck and the plentiful, undepleted food supply indicated
that the BLACK CAT had recently embarked on what was expected
to be a long journey.10 The use of a recreational craft to
____________________
10. The government introduced evidence that it would have
taken only twenty hours to travel from the point of
interception to Aruba, the purported destination. This
evidence suggested that the plentiful food and fuel supply
would have been unnecessary for the claimed voyage. The
evidence also established that had the vessel departed from
Panama as originally claimed, the voyage would have taken two
to three days and at least one-half of the fuel would have
been used to reach the point of interception, some 400 miles
away from the nearest Panamanian port.
-26-
26
carry the large shipment, without commercial documentation,
beyond the normal area of operation for such a vessel further
evinced the voyage's illegitimate purpose. Cf. Robinson, 843
___ ________
F.2d at 9 (involving a "'mudboat,' a vessel that normally
supplies oil rigs in the Gulf of Mexico," found near
Bermuda).
Perhaps most telling for the purposes of this case
were the numerous unlabeled bales, wrapped in a fashion
typical for controlled-substances likely to be off-loaded at
sea. The bales were so ubiquitous that they left no room to
stand or sit in the cramped cabin. Compare Piedrahita-
_______ ___________
Santiago, 931 F.2d at 131 ("[A] relatively small vessel
________
carrying a large quantity of drugs is indicative of knowledge
and involvement on the part of the crew."); with Steuben, 850
____ _______
F.2d at 868-69 (reversing conviction where, inter alia, the
_____ ____
government failed to produce evidence that defendant knew the
illegal nature of cargo concealed in barge towed behind tug).
The rough seas and the limited space to stand on deck
permitted the inference that the crew spent its time together
below, among the bales.11 Finally, the crew's emergence from
____________________
11. The proximity of the crew on board the BLACK CAT is also
indicative of the closeness of their relationship. See
___
Robinson, 843 F.2d at 8 (noting evidence that crew member had
________
spent time on captain's deck as probative of close
relationship). The evidence further suggested that the crew
may have been larger than necessary to operate the small
vessel during its stated journey. See Piedrahita-Santiago,
___ ___________________
931 F.2d at 130 (involving seven crew members on forty-foot
vessel that "would ordinarily require a crew of only three or
-27-
27
the cabin area with their belongings in hand upon the Coast
Guard's approach permits the inference that they knew they
had been caught in an illegal venture, and would eventually
be arrested.
Although these facts, in isolation, do not
necessarily lead to the conclusion that the crew members knew
the bales contained a controlled substance, in combination,
they constitute more than enough evidence to support a
finding of positive knowledge, or at least deliberate
ignorance,12 of that fact. See Robinson, 843 F.2d at 9; see
___ ________ ___
also United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.
____ _____________ _____
1992) (explaining that "juries are not required to examine
the evidence in isolation, for 'individual pieces of
evidence, insufficient in themselves to prove a point, may in
cumulation prove it. The sum of an evidentiary presentation
may well be greater than its constituent parts.'") (quoting
Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).
_________ ______________
____________________
four" and explaining that "[a] larger crew than ordinarily
needed for navigation purposes suggests that the crew was
hired for the purpose of loading and unloading cargo rather
than merely steering the vessel").
12. Where "'the facts suggest a conscious course of
deliberate ignorance,'" a jury is warranted in finding the
defendants' deliberate ignorance of criminal events, which is
tantamount to knowledge. United States v. Cassiere, 4 F.3d
_____________ ________
at 1006, 1023-24 (1st Cir. 1993) (quoting United States v.
______________
Littlefield, 840 F.2d 143, 148 n.3 (1st Cir. 1988)). The
___________
district court instructed the jury on the deliberate
ignorance, or willful blindness, theory of knowledge. See
___
infra Part IV.
_____
-28-
28
The government's proof need not have "exclude[d] every
reasonable hypothesis of innocence," Robinson-Munoz, 961 F.2d
______________
at 305, and the evidence permitted a reasonable inference
that unwitting bystanders would not have been hired to
participate in the BLACK CAT's obvious illegal transport of
millions of dollars' worth of contraband. See United States
___ _____________
v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir. 1990); United
_______________ ______
States v. Luciano-Pacheco, 794 F.2d 7, 11 (1st Cir. 1986);
______ _______________
United States v. Guerrero-Guerrero, 776 F.2d 1071, 1076 (1st
_____________ _________________
Cir. 1985). While the jury could have found that the crew
sincerely believed that the bales contained legitimate cargo,
the evidence certainly did not compel that conclusion.
2. Participation
_________________
We now turn to the defendants' contention that
their "mere presence" aboard the BLACK CAT did not rise to
the level of aiding and abetting. For the most part, the
evidence establishing their knowledge of the illegal nature
of the cargo disposes of this issue. Additionally, the
evidence permitted the reasonable conclusion that the purpose
of each defendant's presence aboard the vessel was to assist
in the transport and handling of the illegal cargo. For
example, the large quantity of cargo made travel aboard the
vessel uncomfortable, thus belying any lawful purpose such as
-29-
29
pleasure-cruising, educational experience, or adventure.13
Because the crew's presence on board the BLACK CAT evinced
more than a coincidental association with the criminal
venture, a jury could rationally infer that the circumstances
"fairly imply participatory involvement." United States v.
_____________
Echeverri, 982 F.2d 675, 678 (1st Cir. 1993) (also explaining
_________
that the "mere presence" argument holds no water "where the
'mere' is lacking").
We find, therefore, that the evidence supported the
requisite two-step inference: (1) the BLACK CAT was engaged
in the obvious transportation of a controlled substance and
(2) each defendant was ready to participate in the venture.
See Jiminez-Perez, 869 F.2d at 11. The defendants do not
___ _____________
dispute that the large quantity of marijuana on board the
vessel permitted the inference of an intent to distribute the
controlled substance. See Echeverri, 982 F.2d at 678. Thus,
___ _________
we conclude that the evidence was sufficient to prove that
the defendants, aiding and abetting each other, knowingly
____________________
13. Cf. United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.
___ _____________ _______
1978) (finding no criminal participation given the small
packages of easily concealable contraband and the absence of
evidence indicating that defendant "embarked on the voyage
for any purpose other than a pleasure cruise"); United States
_____________
v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977) (reversing
__________
convictions of crew members on same voyage involved in
Mehtala and noting that crew consisted of "young men, short
_______
of funds, seeking travel for educational experience and
adventure").
-30-
30
possessed a controlled substance, marijuana, with the intent
to distribute it.
In light of the above, we find no error in the
district court's denial of defendants' motions for acquittal.
IV.
IV.
___
Jury Instructions
Jury Instructions
_________________
Ospina, Hernandez, and Rivas argue that the
district court committed reversible error in instructing the
jury on reasonable doubt, deliberate ignorance, and mere
presence. Although the defendants raised their concerns both
during a formal charge conference and in writing, they did
not renew their objection after the court charged the jury.
This procedural default triggers only "plain error" review.
See United States v. Mendoza-Acevedo, 950 F.2d 1, 4 (1st Cir.
___ _____________ _______________
1991).
Citing United States v. Andujar, 49 F.3d 16, 23
_____________ _______
(1st Cir. 1995), the defendants requested the district court
to include the following jury instruction when discussing
"reasonable doubt": "If you jurors, view the evidence in the
case as reasonably permitting either of two conclusions --
one of innocence, the other of guilt -- the jury should of
course adopt the conclusion of innocence." The court
rejected the proposed instruction.
In Andujar, we explained that an appellate court
_______
must reverse a conviction on the grounds of evidentiary
-31-
31
insufficiency "where an equal or nearly equal theory of
guilty and a theory of innocence is supported by the evidence
viewed in the light most favorable to the verdict." 49 F.3d
at 20 (internal quotation marks and citations omitted). In
such cases, "a reasonable jury must necessarily entertain a
reasonable doubt." Id. Our explanation of the scope of
___
appellate review, however, does not necessarily translate
into a proper jury instruction. The defendants' proposed
instruction comes close to making a comparison between "guilt
or innocence," which, if suggested as equal alternatives,
"'risks undercutting the government's burden by suggesting
that they should find the defendant guilty if they think he
is not innocent -- regardless of how convincing the
government's proof has been.'" Id. at 24 (quoting Mendoza-
___ ________
Acevedo, 950 F.2d at 4). Given our repeated admonition
_______
against overdefining "reasonable doubt," see id. at 23
___ ___
(noting that attempts to clarify the concept may serve to
obfuscate it), we find no plain error in the court's refusal
to adopt the proposed instruction.14
____________________
14. At oral argument before us, Hernandez suggested for the
first time that the court erred in using the phrase "hesitate
to act" when discussing reasonable doubt. Despite the fact
that new issues raised at oral argument are normally deemed
waived, see United States v. De Leon Ruiz, 47 F.3d 452, 455
___ _____________ ____________
n.1 (1st Cir. 1995), out of an abundance of caution we have
carefully reviewed the court's charge. Although the
"hesitate to act" language is "arguably unhelpful," Gilday v.
______
Callahan, 59 F.3d 257, 264 (1st Cir. 1995), cert. denied, 116
________ _____ ______
S. Ct. 1269 (1996), under our reasoning set forth in Andujar,
_______
49 F.3d at 23-24, we find no error.
-32-
32
Hernandez further complains that the district
court's instruction on "deliberate ignorance," followed
immediately by its charge concerning "mere presence,"
confused the jury regarding the requirements of aiding and
abetting liability. We disagree. The court instructed the
jury that a defendant's knowledge of a particular fact may be
inferred from proof that he deliberately closed his eyes to
the obvious. The court then stated, "[y]ou have heard the
word[s] 'mere presence' in this case," and explained that
mere presence at the scene of a crime, or mere association
between the principal and those accused of aiding and
abetting, is insufficient to establish guilt. In our view,
the court's instructions adequately distinguished between the
deliberate-ignorance theory, which relates to the defendants'
knowledge of a fact, and the mere-presence theory, which
concerns the level of defendants' participation in the crime.
See United States v. Cassiere, 4 F.3d at 1006, 1023 (1st Cir.
___ _____________ ________
1993). Under plain error review, we find no clear risk of
confusion.
V.
V.
__
Destruction of Vessel
Destruction of Vessel
_____________________
The Coast Guard's act of sinking the vessel by
machine gun fire because of its concern for navigational
safety is not unprecedented. See, e.g., United States v.
___ ____ _____________
Doe, 860 F.2d 488, 490 (1st Cir. 1988). Nevertheless,
___
-33-
33
Hernandez asserts that the destruction was unnecessary and
suggests that this act amounted to a deprivation of due
process under Brady v. Maryland, 373 U.S. 83, 87 (1963), and
_____ ________
Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Hernandez'
_______ __________
failure to explain the potential materiality or usefulness of
the vessel to his defense, and his concession that no
evidence demonstrates bad faith in connection with the
vessel's destruction, render his argument specious. See
___
Youngblood, 488 U.S. at 58; United States v. Gallant, 25 F.3d
__________ _____________ _______
36, 39 (1st Cir. 1994); cf. United States v. Alston, No. 96-
___ _____________ ______
1779, slip op. at 8-10 (1st Cir. May 5, 1997) (finding no due
process violation where government "deliberately alter[ed]
evidence that, in its original form, might have helped to
exculpate [defendant]," but where defendant did not
demonstrate that such action significantly impaired his
defense).
-34-
34
VI.
VI.
___
Sentencing Issues
Sentencing Issues
_________________
Rivas and Ospina contend that the district court
erred in calculating their sentences. Because they failed to
raise their arguments below, we review for "plain error."
See United States v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996).
___ _____________ _____
We discuss each defendant in turn.
A. Rivas
_________
At sentencing, the district court increased Rivas'
base offense level upon finding that he acted as "pilot"
aboard the BLACK CAT. See U.S. Sentencing Guidelines Manual
___
2D1.1(b)(2)(B) (requiring a two-level increase if "the
defendant acted as a pilot, copilot, captain, navigator,
flight officer, or any other operation officer aboard any
craft or vessel carrying a controlled substance"). Rivas
asserts that the guideline only applies to offense
participants in a position of authority or command. He
reasons that the guideline should not apply to him because he
did not possess special navigational rank or skills and
merely steered the vessel upon the master's instruction.15
____________________
15. The district court adopted the factual findings set
forth in Rivas' Presentence Investigation Report, which,
though not made a part of the appellate record, presumably
sets forth the facts leading to the "pilot" finding. Rivas
did not object to any portion of the report during his
sentencing hearing and does not dispute that he steered the
vessel.
We further note that at trial, over which the
sentencing judge presided, Rivas testified that he had been
-35-
35
The sentencing guideline does not define the word
"pilot," and our research has not revealed any caselaw to
inform our inquiry. Nevertheless, the common dictionary
definition of "pilot" includes a person hired to steer a
vessel. See, e.g., Webster's Third New International
___ ____
Dictionary of the English Language 1716 (1986) (defining
"pilot," inter alia, as "one employed to steer a ship:
_____ ____
helmsman"). While the act of steering a forty-foot vessel on
the high seas may or may not involve a skill obtained through
extensive maritime training, we cannot say that the district
court committed plain error in finding that Rivas "acted as a
pilot" aboard the boat within the meaning of U.S.S.G.
2D1.1(b)(2)(B). Furthermore, we disagree with Rivas'
contention that the guideline applies only to those with
special command in a criminal enterprise. While the
guideline may speak to a defendant's control over some
mechanical aspect of a vessel's operation, it does not
address the defendant's authority over other individuals
involved in a criminal venture. Cf. U.S.S.G. 3B1.1
___
____________________
hired by a man looking for "any seaman who was available to
navigate." When the ship set sail, he complied with Pilco's
instruction to "take care of the helm," which Rivas manned
for a four hour shift. Furthermore, when asked whether
commercial cargo is usually labeled so that those handling
the cargo are aware if its contents, Rivas replied, "No,
because that was not my job. . . . I was told I was in charge
__________________________
of the helm, which was my profession." (emphasis added).
____________________________________
-36-
36
(providing enhancements for a defendant's role as "organizer,
manager, or supervisor").16
B. Ospina
__________
Ospina belatedly argues that the district court
incorrectly calculated his incarcerative sentence based on an
enhanced statutory maximum of thirty years, rather than
twenty years, under the Career Offender Guideline. See
___
U.S.S.G. 4B1.1. Ospina's argument fails both because the
statutory maximum term for his offense remained fixed at life
imprisonment without any enhancement, see 21 U.S.C.
___
960(b)(1)(G), and because, in any event, the Supreme Court
has reversed his cited authority, see United States v.
___ ______________
LaBonte, No. 95-1726, 1997 WL 273644, at *3 (U.S. May 27,
_______
1997) (reversing United States v. LaBonte, 70 F.3d 1396 (1st
_____________ _______
Cir. 1995)).
VII.
VII.
____
Conclusion
Conclusion
__________
For the foregoing reasons, the judgment of the
district court is affirmed.
affirmed
________
____________________
16. We note that the government chose not to seek an
offense-level increase on the alternative basis of "use of
special skill." U.S.S.G. 3B1.3. The commentary to 2D1.1
specifies that 3B1.3 is inapplicable if the sentencing
court, as here, assesses an enhancement under
2D1.1(b)(2)(B).
-37-
37
