United States v. Alfredo Alvarado

• Court: Court of Appeals for the First Circuit
• Decided: December 31, 1992
• Docket: 91-2075
• Status: Published

Opinion

USCA1 Opinion

December 31, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

        No. 91-2075
                                    UNITED STATES,
                                      Appellee,

                                          v.

                                LUIS ALFREDO ALVARADO,
                                Defendant, Appellant.
                                      __________

        No. 91-2076
                                    UNITED STATES,
                                      Appellee,

                                          v.

                            JUAN EUGENIO LORENZI-PADILLA,
                                Defendant, Appellant.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________
                                 ____________________

                                        Before
                                 Breyer, Chief Judge,
                                         ___________
                                 Cyr, Circuit Judge,
                                      _____________
                             and Boyle,* District Judge.
                                         ______________
                                 ____________________

            Jose F. Quetglas Jordan with whom  Eric M. Quetglas Jordan  was on
            _______________________            _______________________
        brief for appellant Luis Alfredo Alvarado.
            Eric M. Quetglas Jordan  with whom Jose F. Quetglas Jordan was  on
            _______________________            _______________________
        brief for appellant Juan Eugenio Lorenzi-Padilla.
            Jose  A. Quiles-Espinosa,  Assistant United  States Attorney, with
            ________________________
        whom  Daniel  F.  Lopez  Romo, United  States  Attorney,  and Jeanette
              _______________________                                 ________
        Mercado Rios,  Assistant United  States  Attorney, were  on brief  for
        ____________
        appellee. 
                                 ____________________

____________________
        _____________________

        *Of the District of Rhode Island, sitting by designation.

BOYLE, District Judge:
                    ______________

                       Luis   Alvarado  and  Juan   Lorenzi  appeal  from

             judgments  of   conviction  for  aiding  and   abetting  the

             possession  with  intent to  distribute  approximately 267.6

             kilograms  of cocaine  stipulated  to be  worth between  $60

             million  and  $100  million  in  violation  of  46 U.S.C.   

             1903(a),   (c)(1)(d),  (f),  &  18   U.S.C.     2,  and  the

             importation  of cocaine  into the  customs territory  of the

             United States in violation of 21 U.S.C.   952(a) & 18 U.S.C.

                2.   Both  appellants claim  that there  was insufficient

             evidence   to   establish   that  appellants   intentionally

             possessed the cocaine with intent  to distribute it and that

             there was insufficient evidence to show that the cocaine was

             imported into  the customs  territory of the  United States.

             After careful consideration of the record, we affirm.

                                    I. Background

                       On the evening of March 19, 1991,  a United States

             Customs Service aircraft acquired  a suspect aircraft on its

             radar  device  and  on  a Forward  Looking  Infrared  System

             ("FLIR") approximately 185 miles southwest of  Ponce, Puerto

             Rico.  The suspect aircraft was heading northeast, traveling

             without navigation lights at an altitude of about 3000 feet.

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                                          4

The Customs Service  aircraft pursued the  suspect

             aircraft at a distance of half-a-mile.  After about one hour

             and  twenty  minutes,  the  pilot  of  the  Customs  Service

             aircraft  noticed the  lights of two  vessels in  the water.

             The   vessels  were   located  approximately   twenty  miles

             southwest of Santa Isabel, which is near Ponce.  The suspect

             aircraft descended to about  300 to 500 feet off  the water,

             just  above the two vessels, and then began a series of hard

             maneuvers, sometimes turning ninety degrees or greater.

                       After about fifteen minutes  of maneuvering by the

             suspect aircraft, the pilot  of the Customs Service aircraft

             noticed a string of  approximately twenty-five lights in the

             water.  Based  on his experience,  the pilot suspected  that

             the string of lights he observed were chem lights, which are

             often attached to narcotic airdrops for visibility.

                       The  pilot reported  a  possible  airdrop,  and  a

             Customs   Service  Nomad   aircraft  thereafter   took  over

             surveillance of the two vessels on both radar and FLIR.  The

             vessels were traveling at about twenty to twenty-five miles-

             per-hour  in  a  northbound  heading.    Both  vessels  were

             traveling  without navigation  lights.   The  Nomad began  a

             half-mile  orbit around  the vessels  and radioed  the state

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police  that two  vessels suspected  of drug  smuggling were

             headed towards the shore.

                       At about  11:30 P.M.,  the two vessels,  which had

             been traveling  together at a distance  of approximately 100

             yards, began to separate.   The first vessel continued  in a

             northbound heading, while the second vessel veered off  in a

             more westerly  direction.  To maintain  surveillance on both

             of the diverging vessels, the Nomad kept its FLIR trained on

             the first vessel and its radar trained on the second vessel.

                       A state  police helicopter  was directed  over the

             first  vessel.    The  helicopter  was  well  lit  and  duly

             identified as a police helicopter by twelve- to sixteen-inch

             lettering spelling "FURA" for police as well as displaying a

             coat  of arms.  A  sergeant in the  helicopter signalled the

             co-defendants aboard  the first  vessel,  Angel Morales  and

             Wilfredo Cartagena,  to cut  the engine  and stop the  boat.

             Initially, the  co-defendants reduced their speed,  but then

             accelerated again  and continued  moving towards  the shore.

             As the first vessel  tried to escape, the  police helicopter

             alerted  land base and seaborne units.  The helicopter began

             to orbit the vessel  while awaiting the arrival of  a police

             boat.   A  police boat with  flashing lights  approached the

             first vessel soon thereafter.   The co-defendants  initially

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attempted  evasive maneuvers,  but were  eventually detained

             and arrested.

                       After  the  police  helicopter  had  reported  its

             location  as overhead  the  first vessel,  the Nomad  turned

             southwest toward  the second  vessel and began  orbiting it.

             The police helicopter flew  to the area of the Nomad and the

             second vessel once the first vessel was in custody.  At that

             time, the  two vessels were approximately  five miles apart.

             The  helicopter maneuvered  itself  just  above  the  second

             vessel,  which  still had  its navigation  lights off.   The

             police crew illuminated the vessel with a hand-held lamp and

             observed appellants Juan Lorenzi  and Luis Alvarado and four

             bales of possible contraband on board.  Appellants initially

             ignored police commands to  turn off the motor and  stop the

             boat.   After a  short pursuit, however,  appellants stopped

             the vessel.    A  police sergeant  jumped  from  the  police

             helicopter onto  appellants'  vessel and  placed  appellants

             under arrest.

                       In  addition  to   the  four  bales  of   possible

             contraband,  several chem  lights were  found hidden  in the

             stern  of the second vessel.   Pieces of  matching ribbon of

             the  bales were  still attached  to the  chem lights.   Also

             found on board the  second vessel were two spare  gas tanks,

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two  lamps, and unused fishing equipment.  There was no bait

             found  on  board.    Appellant  Luis  Alvarado  nevertheless

             claimed that he  and Juan Lorenzi had  laid a fish  net that

             evening in an area called "El Investigador," which is  seven

             or eights miles off the coast, when they heard the sounds of

             objects  falling into  the  water and  saw floating  lights.

             They headed toward the lights and then heaved the bales onto

             the  second vessel.   Mr. Alvarado admitted  that he thought

             the bales  contained contraband, but claimed that he and Mr.

             Lorenzi  were  en route  to  the police  station  where they

             intended to relinquish the bales.

                       On March 20,  the day after the  arrests, a police

             aircraft  returned  to  the  airdrop site  and  observed  an

             additional  seven bales  of cocaine  floating in  the water.

             They were only  able to retrieve four  of these bales.   The

             substance in these bales as well as the bales found on board

             the second vessel later tested  positive for cocaine with  a

             weight  of  267.6  kilograms  and a  purity  of  ninety-five

             percent.

                                    II. Discussion

             A. Sufficiency of Evidence of Intent
                _________________________________

                       Appellants  contend  that  there was  insufficient

             evidence  to  prove  that they  intentionally  possessed the

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                                          8

cocaine  with the  intent of  importing or  distributing it.

             This argument  fails.   We review the  convictions only  for

             clear and gross injustice because appellants failed to renew

             their motions for judgments of acquittal under Fed. R. Crim.

             P.  29(a) after  presenting  evidence on  their own  behalf.

             United  States v.  Hadfield,  918 F.2d  987,  996 (1st  Cir.
             ___________________________

             1990);  United States  v. Clotilda,  892 F.2d  1098, 1102-03
                     __________________________

             (1st Cir. 1989).

                       Appellants fail to meet  this standard.  There was

             evidence  for  the jury  to  conclude  that appellants  were

             guilty beyond a reasonable doubt.  Appellants were in one of

             two  vessels over  which a  suspect aircraft  hovered.   The

             suspect  aircraft  met  the   profile  criteria  of  a  drug

             transporting aircraft  in that it  had no lights,  no flight

             plan, and was flying at a dangerously low altitude.  It made

             a series  of hard  maneuvers approximately three  hundred to

             five  hundred  feet  above  the appellants'  vessel.    Both

             vessels appeared to be  signalling the suspect aircraft with

             their  lights.   The  vessels then  turned their  navigation

             lights  off and headed towards the shore once appellants had

             retrieved  four bales of cocaine  from the water.   The jury

             could reasonably  infer that the vessels  were attempting to

             evade  detection  by  law   enforcement  officials.     This

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inference   is  further   strengthened  by  the   fact  that

             appellants attempted to avoid the police helicopter that was

             well  lit and  clearly  identified by  lettering, twelve  to

             sixteen inches high, and a coat of arms on the side.

                       The jury quite reasonably declined to believe Luis

             Alvarado's  tale  that he  and  Juan  Lorenzi possessed  the

             cocaine only because they were  en route to turn it over  to

             the police.  Appellants importuned the jury  to believe that

             they heard bales of cocaine drop into the water twenty miles

             southwest of Puerto  Rico, while  they were  fishing in  "El

             Investigador,"  which is only  seven or eight  miles off the

             coast.   Moreover, fishing gear was not in working order and

             there was no  bait found aboard  their vessel.  Nor  was the

             fishing net they cast  upon the water recovered in  the area

             of "El Investigador."  The jury could reasonably  have found

             the  appellants'  version of  the  events that  night  to be

             incredible.  Since the  evidence overwhelmingly supports the

             verdicts  of  the  jury,  appellants'  convictions  are  not

             grossly unjust.

             B.  Importation
                 ___________

                       Appellants'   second  claim   of  error   is  more

             meaningful.    Appellants contend  that  the district  judge

             incorrectly  instructed  the  jury  as  to  the  element  of

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                                          10

importation.  Appellants,  however, neither objected  to the

             trial  court's  instructions  nor  proffered  additional  or

             different  instructions   of  their  own.     As  a  result,

             appellants forfeited  the right to ordinary review.   We can

             reverse  their  convictions   only  if  the  lower   court's

             instructions  amount to  plain error.  See United  States v.
                                                    ___ _________________

             Natanel, 938 F.2d  302, 311 (1st  Cir. 1991), cert.  denied,
             _______                                       _____  ______

             112  S.Ct.  986 (1992).   As  we  have stated  before, plain

             errors are   "those errors  so shocking that  they seriously

             affect the  fundamental fairness and basic  integrity of the

             proceedings conducted below." United  States v. Griffin, 818
                                           _________________________

             F.2d 97, 100  (1st Cir.  1987), cert. denied,  484 U.S.  844
                                             _____ ______

             (1987).   "It follows, unsurprisingly, that  the plain error

             exception is to be used 'sparingly,' only to prevent justice

             from miscarrying." United States v. Hunnewell, 891 F.2d 955,
                                __________________________

             956 (1st Cir. 1989). 

                       The relevant  statute, 21 U.S.C.    952(a), states

             that "[i]t  shall be  unlawful to  import  into the  customs

             territory  of  the  United  States from  any  place  outside

             thereof  (but within the  United States), or  to import into

             the  United  States  from  any place  outside  thereof,  any

             controlled substance . . ."  Thus, a critical element of the

             offense of importation is that a defendant imports or causes

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                                          11

to  be  imported a  controlled  substance  into the  customs

             territory of the  United States.  United States  v. Nusraty,
                                               _________________________

             867  F.2d 759, 766 (2d  Cir. 1989); United  States v. Samad,
                                                 _______________________

             754 F.2d  1091, 1096  (4th  Cir. 1984).  The district  judge

             instructed the jury that:

                       Customs  waters  of  the  United  States, as  they
                       relate to  a United States vessel,  are the waters
                       around  the vessel  irrespective of  distance from
                       the United States, within  which the United States
                       may enforce its law if the vessel  is hovering off
                       the coast of the United States and is suspected of
                       smuggling . . .
                       A   hovering  vessel  in   the  context   of  this
                       instruction, means a vessel  found or kept off the
                       coast  of  the  United  States,  if  from history,
                       conduct or character or location of the vessel, it
                       is reasonable to believe that such vessel is being
                       used  or  may be  used  to  introduce, promote  or
                       facilitate    the   introduction    or   attempted
                       introducing of contraband into the country.

                       The  statute  defines  "customs  territory  of the

             United  States" as  having  the meaning  assigned  to it  by

             general  note 2  of the  Harmonized Tariff  Schedule  of the

             United  States.   21 U.S.C.    951(a)(2).   General  note 2,

             however,  merely states  that the  customs territory  of the

             United  States includes  only  the States,  the District  of

             Columbia, and Puerto Rico.  Although general note 2 fails to

             provide   a  meaningful   standard   for  determining   what

             constitutes the  customs territory of the  United States, it

             is  well  settled  that  the outer  limits  of  the  customs

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territory of the United States extend only twelve miles from

             the coast.   See United States  v. Lueck, 678 F.2d  895, 905
                          ___________________________

             (11th Cir. 1982); United  States v. Seni, 662 F.2d  277, 286
                               ______________________

             (4th Cir.  1981), cert. denied, 455 U.S.  950 (1982); United
                               _____ ______                        ______

             States  v.  Williams, 617  F.2d  1063,  1073 n.6  (5th  Cir.
             ____________________

             1980)(en banc).    Thus,  the  jury should  have  been  more

             specifically  instructed   that  in  order   to  find   that

             appellants  imported  a  controlled  substance   within  the

             meaning of 21 U.S.C.   952(a), the contraband must have come

             into the twelve-mile outer limit of the customs territory of

             the  United States. See United States v. Nueva, No. 91-2150,
                                 ___ ______________________

             slip op.  at 8  - 9  (1st Cir. November  4, 1992);  see also
                                                                 ___ ____

             United States v. Goggin, 853 F.2d 843, 845 (11th Cir. 1988).
             _______________________

             There  is no record, however, that anyone called this to the

             attention of the District Judge.

                       Although  the  district court's  instructions were

             incomplete,  we  must  consider the  instructions  in  their

             entirety  and   in  the  context  of  the  entire  trial  in

             evaluating  a  claim of  plain error.  See United  States v.
                                                    ___ _________________

             Weston,  960 F.2d 212, 216 (1st Cir. 1992).  Furthermore, we
             ______

             must  view the evidence in  the light most  favorable to the

             verdict. See United States  v. Batista-Polanco, 927 F.2d 14,
                      ___ _________________________________

             17  (1st   Cir.  1991).     The  government   contends  that

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appellants'  vessel  entered the  twelve-mile  customs limit

             because of evidence that  the police helicopter hovered over

             appellants' vessel  at Jobos  Bay, which  is seven  or eight

             miles  from  shore.    The  evidence  however  is  that  the

             helicopter,  while awaiting  the arrival  of a  police boat,

             hovered over the first vessel operated by co-defendants, not

             the  second  vessel,  which  was operated  and  occupied  by

             appellants.     Appellants'  boat  had  separated  from  co-

             defendants' boat  approximately twelve (12)  minutes earlier

             and headed  in a  westerly direction, roughly  parallel with

             Puerto  Rico's  southern  coast.    Nothing  in  the  record

             indicates  that  appellants'  boat  travelled  significantly

             further  away  from  the  coastline  after  the  separation.

             Accordingly,  the relative position  of co-defendant's boat,

             which   was  apprehended  just  minutes  after  the  vessels

             separated, is  at least  some evidence that  appellants boat

             also crossed the twelve-mile customs territory limit.   

                       The government also cites to the testimony of Luis

             Alvarado that appellants had allegedly laid a fishing net in

             the  area of "El Investigador", an area seven or eight miles

             from  shore.   The jury  obviously did  not believe  certain

             aspects of appellant's  "fish tale" or  else they would  not

             have  convicted appellants.    No one,  however, denies  Mr.

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                                          14

Alvarado's statements that,  while headed toward  shore with

             cocaine on  board their  vessel, he and  Mr. Lorenzi  passed

             through  "El  Investigador",  well  within  the  twelve-mile

             limit.  In fact, in his opening statement, appellants' trial

             counsel  told the court and  jury "[t]he only  issue in this

             case is whether or  not Luis and Juan possessed  those bales

             of  cocaine with  the intention  of delivering  them  to the

             police authorities in  the police headquarters  in Salinas."

             Trial  Transcript at  57.   "At around  6:00 o'clock  in the

             afternoon Juan and  Luis left  the coast  on Juan's  fishing

             boat  and headed toward El Pescador, a fishing area seven or

             eight miles  away from the  coast." Trial Transcript  at 59.

             Although counsel's  statements  are not  evidence,  they  do

             indicate that counsel had no intention of disputing the fact

             that  appellants were  within the  twelve mile  limit.    In

             light  of  such  representations, it  would  be particularly

             unreasonable to expect the district court to have thought of

             the precisely correct instruction on its own.

                       Finally,  a  mark made  on an  aeronautical chart,

             presented  to   the  jury  as  Joint   Exhibit  1,  provides

             additional evidence that  appellants entered the twelve-mile

             customs limit.   This mark was made by the radar operator of

             the  Nomad in  the course  of testifying  as to  the various

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                                          15

positions  of  the vessels  after the  airdrop up  until the

             arrests.   The government did not specifically ask the radar

             operator the distance between the  mark and the Puerto Rican

             shoreline.   Using the  chart's mileage scale,  however, the

             mark establishes that appellants  were taken into custody at

             a point about  seven miles  from the coastline.   The  radar

             operator's mark,  taken together with  the relative position

             of  co-defendants' boat  and Luis Alvarado's  statement that

             appellants  passed through  "El  Investigador", is  credible

             evidence  that  the  element of  importation  was  met.   In

             contrast, there  is no evidence that  remotely suggests that

             appellants  were taken  into custody  at a  point beyond  12

             miles from the coast.

                       As  we  have  stated  before,  "[t]he  plain error

             hurdle is high."   See United States v. Hunnewell,  891 F.2d
                                ___ __________________________

             955, 956 (1st Cir.  1989).  Appellants have failed  to clear

             this height.  To hold differently would permit appellants to

             benefit  from their own failure either to object to the jury

             instructions  at  trial   or  to   propose  an   appropriate

             instruction to  the court.  We  cannot promote "sandbagging"

             of this  type.    As  a matter  of  policy,  we  stress  the

             importance  of making  contemporaneous  objections  to  jury

             instructions and the duty to  assist the court to accomplish

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                                          16

an  error free trial.  In sum, appellants have not presented

             "the rare case in which [a lack of] instruction will justify

             reversal of a criminal conviction when no objection has been

             made in the trial  court." See Henderson v. Kibbe,  431 U.S.
                                        ___ __________________

             145, 154 (1977). 

                                   III. Conclusion.

                       The  evidence  overwhelmingly  supports  the  jury

             verdicts  as  to  the  charge  of  aiding and  abetting  the

             possession with intent to  distribute cocaine, and we affirm

             the  appellants'  convictions  under 46  U.S.C.     1903(a),

             (c)(1)(d),  (f), & 18 U.S.C.   2.  Furthermore, the district

             court's instruction  on the element of  importation does not

             amount  to   plain  error.     Therefore,  we   also  affirm

             appellants' convictions for the importation of cocaine  into

             the  customs territory of the United  States in violation of

             21 U.S.C.   952(a) & 18 U.S.C.   2.

             Affirmed.
             Affirmed
             ________

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