United States v. Coplin-Bratini

• Court: Court of Appeals for the First Circuit
• Decided: December 22, 1997
• Docket: 96-1661
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



          No. 96-1661



                                    UNITED STATES,



                                      Appellee,



                                          v.



                           JUAN R. CASTILLO-DE LOS SANTOS,



                                Defendant - Appellant.



                                 ____________________



          No. 97-1277



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                MARCOS COPLIN-BRATINI,



                                Defendant - Appellant.



                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Daniel R. Dom nguez, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                        John R. Gibson,* Senior Circuit Judge,
                                         ____________________



                              and Lynch, Circuit Judge.
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                                _____________________



               Edgardo  Rodr guez-Quilichini,   Assistant  Federal   Public
               _____________________________

          Defender, with  whom Lucien  B. Campbell,  Acting Federal  Public
                               ___________________

                              
          ____________________



          *  Of the Eighth Circuit, sitting by designation.



Defender,  and  Miguel  A.A. Nogueras-Castro,  Assistant  Federal
                          ____________________________

          Public  Defender, were  on brief  for  appellant Castillo-de  los

          Santos.

               Carlos  P rez-Olivo,  by  appointment  of  the  Court,   for
               ___________________

          appellant Coplin-Bratini.

               Jacabed  Rodr guez-Coss, Assistant  United States  Attorney,
               _______________________

          with  whom Guillermo Gil,  United States  Attorney, and  Jorge E.
                     _____________                                 ________

          Vega-Pacheco, Assistant United  States Attorney, Chief,  Criminal
          ____________

          Division, were on brief for appellee.


____________________



                                  December 16, 1997

                                 ____________________


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JOHN   R.  GIBSON,  Senior  Circuit  Judge.    Juan  R.
                    JOHN   R.  GIBSON,  Senior  Circuit  Judge.
                                      ________________________



          Castillo-de  los Santos  and Marcos  Coplin-Bratini appeal  their



          convictions for  importing 24.5  kilograms of  cocaine discovered



          inside a ballast tank in their vessel, the Miss Gina.   They were
                                                     _________



          convicted  on three  counts: possessing  cocaine  with intent  to



          distribute, 21 U.S.C.   841(a)(1)(1994) and 18 U.S.C.   2 (1994);



          importing cocaine,  21 U.S.C.    952(a)(1994) and 18 U.S.C.    2;



          and possessing cocaine  on board a vessel arriving  in the United



          States without the cocaine having  been part of the cargo entered



          in the manifest  or part of the official supplies  of the vessel,



          21 U.S.C.   955 (1994) and 18 U.S.C.   2.  Each argues that there



          was insufficient  evidence to  convict him,  and Castillo-de  los



          Santos argues that the court  erred in admitting evidence that he



          failed to file income tax returns.  We affirm the convictions.



                    The Miss Gina  arrived in Puerto Rico with  no cargo on
                        _________



          September  11, 1995, after departing from the Dominican Republic.



          The Miss Gina was a small, old commercial vessel owned by the two
              _________



          appellants.1   Castillo-de los  Santos identified himself  as the



          captain  of  the  vessel.   The  United  States  Customs  Service



          conducted an initial search of  the vessel, and during the search



          a trained dog alerted to a black bag belonging to Castillo-de los



          Santos.   The  dog's reaction  indicated  that the  bag had  once



          contained narcotics, but  at the time of the  customs search, the


____________________



          1  Originally  a third partner had  owned a part interest  in the

          vessel;  he relinquished  ownership before  the  events at  issue

          here.  



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bag  was full  of anabolic  steroids.   The search  revealed more



          steroids, which the Customs Service seized. 



                    The Customs Inspector  left the ship, but  returned and



          informed Castillo-de los Santos that he had to wait for a Customs



          Agent  to arrive.    By  this time,  Castillo-de  los Santos  was



          preparing to pull the vessel out of the dock.  He became agitated



          and  had  to be  ordered  repeatedly  to  turn off  his  engines.



          Coplin-  Bratini was also  on board the  vessel.   He also became



          agitated and said that he had to  leave the vessel because he had



          ulcers.  The  Customs Agent arrived and  arrested Castillo-de los



          Santos for possession and importation of steroids. 



                    On  September 14, 1995,  the Customs officials returned



          and searched the vessel again.  This time the inspectors searched



          the cargo hold.  They noticed  that some of the metal hatches  of



          the water tanks in the hold had been painted so recently that the



          paint was not  yet dry.   Also, the nuts  and bolts of the  hatch



          were loose.   In contrast, another hatch in the same area was not



          painted, and  the nuts  were rusty, showing  that they  had never



          been removed.  The inspectors looked inside one of the tanks with



          the newly painted hatch  and found two metal boxes  floating in a



          diesel oil  layer above the  water inside  the tank.2   The boxes



          contained 24.75 kilograms of cocaine.



                    At trial the government  showed that the Miss Gina  had
                                                             _________



          only  conducted  seven  trips  during  the  two  years  that  the

                              
          ____________________



          2  The government argued in closing  that the layer of diesel oil

          was meant to mask the smell of the drugs, so that the drugs would

          not be detected by drug-sniffing dogs.



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appellants owned  it, and  that on each  trip the  vessel carried



          cargo  to the  Dominican  Republic, but  returned to  Puerto Rico



          empty.   The vessel's marine  agent testified that it  was common



          for commercial vessels to carry cargo from the Dominican Republic



          to "the  islands"; after delivering  their cargo to  the islands,



          such vessels would arrive at Puerto Rico empty, ready to pick  up



          a new cargo.   However, the Miss  Gina had not carried  any cargo
                                      __________



          from the Dominican Republic.  



                    Castillo-de  los  Santos,   Coplin-Bratini,  and  their



          partner  had  bought the  vessel  for  $45,000.   The  government



          introduced testimony and  financial records of the  ship's agent,



          which it summarized as showing  that during the two years  of the



          appellants'  ownership,  the  Miss  Gina  had  expenses exceeding
                                        __________



          $75,000, but grossed less than  $35,000.  The ship's marine agent



          testified that during those  two years, the ship  had accumulated



          more than  $25,000 in bills to the agent,  and that the bills had



          been paid in cash on every occasion but one, in denominations  of



          twenties, tens, fives, and ones.



                    The  government also  introduced Coplin-Bratini's  last



          five tax  returns, which apparently  showed an average  income of



          $15,000.   Castillo-de los Santos  had not filed any  tax returns



          with the Puerto Rico Treasury Department. 



                    The wholesale value of the cocaine seized from the Miss
                                                                       ____



          Gina was $15,500 per kilogram, or a total of $379,750.  The value
          ____



          of  the cocaine  once cut  and  prepared for  retail distribution



          would have been $4.9 million.


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Coplin-Bratini  testified.   On cross-examination,  the



          government showed  that he spent  more money than he  reported as



          income in his  income tax returns and  that he had assets  out of



          proportion to his reported income level.



                    Castillo-de los  Santos  also testified.   He  admitted



          that, before the  trip,  he checked  the water tanks to  see that



          they  were  working. He  said he  did  not know  who  painted the



          hatches and suggested that they were not painted when he left the



          Dominican  Republic,  but  perhaps were  painted  by  the sailors



          without his knowledge during the twenty-four hour voyage from the



          Dominican Republic to Puerto Rico.  



                    The  jury  found both  men  guilty.    They  were  both



          sentenced to 188 months imprisonment  on each count, to be served



          concurrently, five years  supervised release, and a  $50 monetary



          assessment on each count.



                                          I.



                    Both  appellants contend  that  there was  insufficient



          evidence to convict  them, specifically, that the  government did



          not prove they knew of the cocaine's presence on the vessel.



                    We must uphold  the convictions if the  evidence, taken



          in the  light most  favorable to the  government, is  adequate to



          permit  a rational  jury to  find each  essential element  of the



          offenses beyond a reasonable doubt.   See United States v. Valle,
                                                ___ _____________    _____



          72 F.3d 210, 216 (1st Cir. 1995).  All credibility determinations



          must  be resolved in the prosecution's favor, and among competing



          inferences,  we  must  draw  the inference  that  best  fits  the


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prosecution's theory of guilt.   Id. at 216-17.  The  evidence of
                                           ___



          knowledge in this case is circumstantial.  However,



                      [I]n the  context of  review of  a motion

                      for  acquittal,   no  legal   distinction

                      exists between circumstantial  and direct

                      evidence.        Furthermore,    it    is

                      unquestioned  that  direct  evidence need

                      not  be  presented.   Judicial  authority

                      teaches  that  the   government  can  use

                      circumstantial  evidence as  long as  the

                      evidence,   viewed   as   a   whole,   is

                      sufficient to  warrant a  reasonable jury

                      to conclude that the defendant is  guilty

                      beyond a reasonable doubt.



          United  States v.  Doe,  921  F.2d 340,  343-44  (1st Cir.  1990)
          ______________     ___



          (internal quotations and citations omitted).



                    The circumstantial evidence that Castillo-de los Santos



          and Coplin-Bratini knew that the cocaine was in the water tank is



          not  overwhelming.  Cf. United States v. Piedrahita-Santiago, 931
                              ___ _____________    ___________________



          F.2d 127,  130-31 (1st  Cir. 1991) (large  cargo of  marijuana on



          small  boat, vessel  in  poor repair  and responded  evasively to



          attempts to contact  it); United States v.  Passos-Paternina, 918
                                    _____________     ________________



          F.2d 979, 984-86  (1st Cir. 1990) (bizarre behavior  of vessel in



          storm, avoiding  Coast Guard, evidence that crew had just removed



          plates behind which  drugs hidden, no valid  registration, etc.),



          cert. denied, 499  U.S. 982 (1991); United States  v. Corpus, 882
          ____________                        _____________     ______



          F.2d  546, 549-50  (1st Cir.)  (as  Coast Guard  sought to  board



          tugboat,  bales  of  marijuana suddenly  appeared  in  the water,



          tugboat lacked sufficient equipment on board to tow, etc.), cert.
                                                                      _____



          denied, 493 U.S. 958 (1989).  However, giving the prosecution the
          ______



          benefit  of all  reasonable  inferences,  we  conclude  that  the



          evidence is sufficient.



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First, Castillo-de  los Santos and  Coplin-Bratini were



          the owners  of the vessel  and were on  board the vessel  when it



          arrived in Puerto Rico, with eight men on board.  Castillo-de los



          Santos was the  captain.  The hatches  to the tanks in  which the



          cocaine was hidden  had been recently painted, so  that the paint



          was still sticky.  Castillo-de los Santos admitted he had checked



          the water tanks before leaving.  Coplin-Bratini also said that he



          had been down in the cargo hold the day  before the ship left the



          Dominican Republic.   The  senior  special agent  of the  Customs



          Service  stated that  in his  experience investigating  smuggling



          cases, given such a large  load of cocaine, somebody with control



          over the ship would have to have  knowledge that it was on board.



          The captain would have control of the ship, and in this  case the



          captain and also the co-owner of  the vessel were on board.   The



          vessel  left  the  Dominican Republic  empty,  which  supports an



          inference that  there was no  commercial reason for the  trip and



          therefore the  captain and  owner must have  known of  an illicit



          purpose.   See  Corpus, 882  F.2d at  550.   Moreover,  the drug-
                     ___  ______



          sniffing dog alerted to a  bag claimed by Castillo-de los Santos,



          indicating that the bag had earlier contained narcotics.



                    The  value  of  the cocaine  on  board,  about $400,000



          wholesale  or $4.9  million  retail,  supports  an  inference  of



          knowledge, since we have before  observed that it is unlikely the



          owner of a valuable  cargo would stow it in a  vessel without the



          knowledge of  the vessel's  captain.   See Passos-Paternina,  918
                                                 ___ ________________



          F.2d at  985.  The  partnership relation between  Castillo-de los


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Santos  and Coplin-Bratini supports an inference that they shared



          knowledge about the use being made of their jointly owned vessel.



          See United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997),
          ___ _____________    ________



          cert.  denied, 118  S. Ct.  320 (1997);  Corpus, 882 F.2d  at 550
          _____________                            ______



          (knowledge established by circumstantial indicia, including close



          relationship of  crew); United States  v. Guerrero-Guerrero,  776
                                  _____________     _________________



          F.2d  1071, 1077  (1st Cir.  1985), cert.  denied, 475  U.S. 1029
                                              _____________



          (1986).



                    Finally,  the financial  evidence that  the vessel  had



          been operated at  a loss since the appellants had  owned it could



          support the  inference that they  had intended to use  the vessel



          for smuggling.   They paid substantial  expenses to their  marine



          agent  in  cash   --  not  only  in  cash,  but   in  very  small



          denominations.   The government's expert on drug smuggling stated



          that   drug  transactions   were  usually   conducted   in  cash,



          specifically in small denominations.  See United States v. Ariza-
                                                ___ _____________    ______



          Ibarra, 605 F.2d 1216, 1225 (1st Cir. 1979).  There was  evidence
          ______



          that  Coplin-Bratini's  living expenses  exceeded  the  amount of



          income he reported in his income tax returns  and that his assets



          were greater  than what his  reported income would warrant.   The



          financial evidence  supports an  inference that he had a practice



          of supplementing his legal income with illegal income.



                    These facts,  taken together,  would permit  a jury  to



          find the essential element of knowledge  of the cocaine.  We must



          uphold the jury's verdict. 


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II.



                    Castillo-de los Santos  argues that the court  erred in



          admitting evidence  that he  had not filed  tax returns  for five



          years.   The  purpose of  this evidence,  as in United  States v.
                                                          ______________



          Figueroa, 976 F.2d 1446, 1454  (1st Cir. 1992), cert. denied, 507
          ________                                        ____________



          U.S. 943 (1993), was  to show that he had greater  income than he



          was reporting to  the government, and to suggest  that his income



          was therefore  derived from an  illegal source that he  dared not



          report.



                    Castillo-de los  Santos argues that the  government did



          not show that he was obliged to report the income, because he had



          lived  in the  Dominican  Republic  since 1989  and  had no  such



          obligation.   He did not  make this argument before  the evidence



          was admitted.   His counsel objected to the use of the income tax



          information, but he did not suggest to the court that Castillo-de



          los Santos  was not required to file a  return.  His counsel said



          only, "[H]e's  a very  humble man who,  like many  people in  our



          country,  for whatever reason, he did not  file income tax."  Not



          until after  the evidence had  been admitted did  Castillo-de los



          Santos's lawyer  attempt to establish  on cross-examination  that



          Castillo-de los Santos  did not live in Puerto Rico.   Even then,



          the   agent  being   cross-examined  steadfastly   repeated  that



          Castillo-de los Santos  had said he lived in Puerto Rico.  At the



          time the evidence  was admitted, Castillo-de  los Santos did  not



          inform  the  court  of  the  factual  predicate  of  his  present



          argument.     We  cannot  require   the  district  court   to  be


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clairvoyant.  Because Castillo-de los Santos did not preserve the



          objection he  now urges,  we review  only for  plain error.   See
                                                                        ___



          Figueroa, 976 F.2d at 1453.  There is no plain error here. 
          ________



                    Castillo-de los Santos also contends  that the evidence



          suggested to the  jury that he was guilty of another crime -- tax



          evasion.  He preserved this objection, so we review the admission



          of the  evidence for abuse of discretion.  See  id. at 1454.  The
                                                     ___  ___



          court in this  case instructed the jury that  the appellants were



          not  charged with income tax violations and that the jury was not



          to consider the evidence as showing "a potential problem with his



          local  tax returns."   See id. (cautionary  instruction minimized
                                 ___ __



          danger  of prejudice).  This instruction adequately channeled the



          jury's use of the evidence  and forestalled any prejudice.  There



          was no abuse of discretion. 



                    We affirm the convictions.
                       ______


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