Filed: Apr. 01, 2003
Latest Update: Feb. 21, 2020
Summary: , Jared Lopez, Assistant United States Attorney, with whom H. S., Garcia, United States Attorney, Sonia I. Torres-Pabon and Nelson, Perez-Sosa, Assistant United States Attorneys, were on brief, for, appellee.appellants had fishing licenses.arguments.first item and No as the answer to the question.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1028
UNITED STATES OF AMERICA,
Appellee,
v.
BASILIO INIRIO-CASTRO,
Defendant, Appellant.
No. 02-1029
UNITED STATES OF AMERICA,
Appellee,
v.
ISIDRO ROSARIO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Zygmunt G. Slominski, by Appointment of the Court, on brief
for appellant Inirio-Castro.
H. Manuel Hernandez, by Appointment of the Court, for
appellant Rosario.
Jared Lopez, Assistant United States Attorney, with whom H. S.
Garcia, United States Attorney, Sonia I. Torres-Pabon and Nelson
Perez-Sosa, Assistant United States Attorneys, were on brief, for
appellee.
March 31, 2003
COFFIN, Senior Circuit Judge. These are two appeals from
judgments of conviction for possession of more than five kilograms
of cocaine, with intent to distribute, in violation of 21 U.S.C. §
841(a)(1). Each of the defendants, Basilio Inirio-Castro and
Isidro Rosario, has raised a challenge to the sufficiency of the
evidence. Inirio-Castro also asserts a separate issue based on the
alleged inconsistency between the jury's general verdict and its
answer to a special interrogatory that Inirio-Castro claims was
improperly submitted to the jury.
Despite an able and spirited defense in both cases, we affirm.
Both appellants and the government agree, as do we, that our
task in evaluating sufficiency is to consider whether all the
evidence, circumstantial as well as direct, taken in the light most
favorable to the prosecution, including reasonable inferences,
enables a rational jury to reach a judgment of guilty beyond a
reasonable doubt. See, e.g., United States v. Ortiz de Jesus, 230
F.3d 1,5 (1st Cir. 2000). Appellants, however, argue that this is
a case where the evidence for and against guilt is so nearly equal
that a reasonable jury could not have found guilt beyond a
reasonable doubt. See United States v. Morillo, 158 F.3d 18, 22
(lst Cir. 1998). But, as Morillo and the case law on which it
relies make clear, all the evidence – that pointing to innocence as
well as that pointing to guilt – must be reviewed in the light most
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favorable to the prosecution. Id. With this in mind, we set forth
the essentials.
On September 5, 2000, appellant Inirio-Castro returned from
visiting family members in the Dominican Republic and, with his
cousin, appellant Rosario, left at a little after 6 p.m. from
Fajardo on the east coast of Puerto Rico ostensibly to go fishing.
Their destination was the area of Las Paulinas beach, between
Luquillo and Fajardo.
At about 9:30 p.m., a U.S. Customs officer using aircraft
infrared radar spotted a small boat powered by twin outboards,
showing no running lights but bearing two individuals, moving
slowly some 50 to 75 feet from shore. He maintained radar contact
with this vessel as it moved further away from the beach. Turning
his attention to the beach, he observed people moving large
packages away from the shoreline, and others moving packages toward
a van. Later in the evening, a police officer on land discovered
eight bales of cocaine on the beach and, the next morning,
seventeen more bales were found near the truck.
Meanwhile, a unit of the Puerto Rico Rapid Action United
Forces pursued the target vessel and boarded it at about 11 p.m.,
about one half to three quarters of a mile off shore. It was
anchored but showed no anchor light; the two occupants were
apparently fishing. It had started raining intensely. There was
some fishing gear aboard (two rods, a reel, ten to fifteen bait
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fish) but no weights, nets, fishing flyers, or gloves . . . and no
caught fish. The boat bore a Virgin Islands registration and both
appellants had fishing licenses. Inirio-Castro said that he earned
from $1000 to $3000 a month from fishing. The boat carried no cell
phones, radios, GPS (Global Positioning System) or other
navigational aid, and no firearms. Appellant Rosario was found to
have sand in his pocket and the two appellants were carrying cash
totaling almost $1000.
A gaff, used to land fish and retrieve other objects from the
water, was found to have a white powdery substance on its tip.
This was subjected to a field test and reacted positively to
cocaine. Fourteen of the twenty-five bales were found to have been
punctured or pierced by a sharp object. White plastic burlap
strips found on the gaff, under a seat, around wiring, tubing,
hoses, battery line, and engine were given laboratory testing,
which revealed similar physical and chemical characteristics to
those on five bales found on the beach.
Appellants seek to characterize their case as one of equal or
near equal weight to that of the prosecution, making the following
arguments. They point out that they were not at the beach, that
others could have delivered the packages, and that they were being
prosecuted for "mere presence." They point out that the only
special equipment on the boat was consistent with fishing, the boat
carried a registration, both appellants had valid fishing licenses,
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no equipment associated with drug smuggling was on board, and that,
unlike an outlaw boat, the vessel was proceeding very slowly.
Finally, field tests were known sometimes to register "false
positive" results and the white plastic strips had not been
subjected to the further lab analysis that could positively
identify them as coming from the bales on the beach.
Without in any way denigrating the efforts and competence of
appellants’ counsel, we think that there are just too many bridges
to cross and too many assumptions to be made for these observations
and arguments to rise to the point where we could say that a
rational jury must have a reasonable doubt. The temporal and
spatial proximity of the boat and the beach operations may not be
conclusive, but it is significant, particularly in the absence of
evidence suggesting any other source of delivery of the bales. A
reasonable jury might question the presence, so close to shore, in
a reef-surrounded area, of a boat bent solely on fishing. It might
also find significance in the fact that sand was found in one
appellant’s pocket.
A rational jury might also question the likelihood of
appellants fishing for several hours and, without any visible
success, continuing despite heavy rain. And it might further give
considerable weight to the positive reaction of the field test on
the gaff and the chemical and physical comparability of the strips
found on the vessel to materials from the bales, even though
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testing for a positive identification of source was not undertaken.
Finally, it might also infer that the holes punched in the bales
had, in the absence of other explanation, been made by the gaff.
We therefore conclude that the judgments of conviction are
supported by sufficient evidence.
What remains is Inirio-Castro's argument that the verdicts are
vulnerable based on the special interrogatory answered by the jury.
The facts relevant to this issue are the following. During the
trial, the jury was read a stipulation signed by all parties that
the twenty-five bales seized on the beach, after chemical analysis,
had been found to contain more than 150 kilograms of cocaine. When
the case was given to the jurors, they received a verdict form.
There were two items requiring jury action. The first was
registration of its finding of guilt or acquittal:
WE, THE JURY, FIND DEFENDANT: [NAME]
___________________ as charged in COUNT ONE of the
Indictment
GUILTY/NOT GUILTY
Count One of the Indictment described the offense as possession
with intent to distribute five kilograms or more of cocaine.
Secondly, at the bottom of the form was this instruction and
question:
If you find the defendant guilty, then proceed to answer the
following question:
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Do you find that the amount of cocaine involved in
the offense charged was in an amount of 150 kilograms or
more?
____________ ___________
YES NO
The jury returned the form with "Guilty" in the blank of the
first item and "No" as the answer to the question. Appellant
Inirio-Castro contends that submitting this question and permitting
this answer amounts to a constructive amendment of the indictment,
violating both the Grand Jury Clause of the Fifth Amendment and the
Sixth Amendment requirement of a jury verdict. He further argues
that the response invalidates the verdict of guilty, signifying a
rejection of all the evidence of the twenty-five bales on the
beach.
The argument relies on our decision in United States v. Spock,
416 F.2d 165 (1st Cir. 1969), where we underscored the general
inappropriateness of submitting special questions in criminal
cases. In that case, ten special questions were put to the jury,
resulting "in a progression of questions each of which seems to
require an answer unfavorable to the defendant, [leading] a
reluctant juror . . . to vote for a conviction which, in the large,
he would have resisted."
Id. at 180-82.
We recognized, however, the existence of an exception for
cases in which "the determination of a particular fact will be
crucial to sentencing," id. at 182 n.41. We have subsequently made
it clear that there is no "mechanical per se rule of
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unconstitutionality . . . for all special questions in criminal
cases," Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir. 1974). We
have also reaffirmed our recognition that special questions may be
permissible in federal criminal proceedings, "usually in connection
with sentence,"
id. We have noted the existence of this genre of
cases specifically in connection with firearms prosecutions where
the severity of sentence would be related to the specific firearm
possessed by a defendant. See United States v. Ellis,
168 F.3d
558, 562 n.2 (1st Cir. 1999); United States v. Melvin,
27 F.3d 710,
716 (1st Cir. 1994).
We think the special question asked in this case was of this
nature. The court apparently was seeking what it thought was
necessary guidance under Apprendi v. New Jersey, 530 U.S. 466
(2000), to determine a fact crucial to sentencing. Moreover, we
can see no reasonable possibility of prejudice. The jury had
registered its finding that defendants had possessed over five
kilograms of cocaine with the intent to distribute. This finding
obviously stemmed from the evidence of the twenty-five bales and
the stipulation that they contained more than 150 kilograms. Now
the jury was being given an opportunity to limit responsibility to
a lower amount. This choice clearly benefitted appellants, since
the court, while recognizing that it could impose sentence based on
a much higher quantity of cocaine, respected and followed the
jury's finding in his sentencing calculations.
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Appellants, however, urge that the answer to the special
question implied a rejection of all the evidence of bales found on
the beach, leaving only the evidence of a trace of cocaine on the
gaff - enough only to justify conviction for simple possession.
This leap of reasoning assumes that the jury was not only reneging
on its verdict of guilt for possession of more than five kilograms
with intent to distribute, but also was ignoring the comparability
of materials found in the boat and on the beach, the punctured
bales, the actions of appellants in the boat, and the absence of
any other explanation for the trace of cocaine found on the gaff.
We do not think that this collection of assumptions falls within
the range of the rational.
We therefore conclude that the special question and the jury’s
answer did not invalidate the verdict.
Affirmed.
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