United States v. Cruz Soriano

• Court: Court of Appeals for the First Circuit
• Decided: February 1, 1996
• Docket: 94-2303
• Status: Published

Opinion

USCA1 Opinion

____________________



        No. 94-2303



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  ALEJANDRO COLLADO,



                                Defendant, Appellant.



                                 ____________________



        No. 95-1041



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 MIGUEL CRUZ-SORIANO,



                                Defendant, Appellant.



                                 ____________________



        No. 95-1080



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    MIGUEL BRITO,



                                Defendant, Appellant.



                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________



            Jeffrey E. Feiler, P.A. on consolidated brief for appellants.
            _______________________

            Miguel Brito on supplemental brief pro se.
            ____________

            Jose   A.  Quiles,   Assistant  United   States  Attorney,  Senior
            _________________

        Litigation Counsel, Guillermo Gil, United States Attorney, and Jacabed
                            _____________                              _______

        Rodriguez Coss, Assistant  United States  Attorney on  briefs for  the
        ______________

        United States.


____________________



                                   February 1, 1996

                                 ____________________



CAMPBELL,  Senior Circuit Judge.  This is a consolidated
                            ____________________



            appeal on behalf of three defendants who were aboard a vessel



            that was  intercepted  for narcotics  trafficking  in  Puerto



            Rican  waters.    Following  a  four-day  joint  jury  trial,



            Alejandro Collado, Miguel Cruz-Soriano, and Miguel Brito were



            found guilty of aiding and abetting the possession of cocaine



            with intent to distribute, in violation of 21 U.S.C.   841(a)



            and 18 U.S.C.   2.1   Each received a sentence of 235  months



            of imprisonment to  be followed by  five years of  supervised



            release.    On  appeal  they  claim  that  the  evidence  was



            insufficient to sustain the jury  verdict.  In a supplemental



            brief filed  pro se,  defendant Brito  asserts several  other



            errors that allegedly infected the trial and his sentence.


I. Background
            I. Background



                      We  summarize  the relevant  evidence in  the light



            most favorable to the verdict.   See United States v. DeMasi,
                                             ___ _____________    ______



            40 F.3d  1306, 1310 (1st Cir. 1994), cert. denied, 115 S. Ct.
                                                 ____________



            947 (1995).  In the early hours of January 27, 1994, the U.S.



            Customs Service  Air Branch  dispatched two  aircraft to  the



            southeast  of St.  John  in  the  U.S. Virgin  Islands  after


____________________



                 1  A second  count  charging  aiding  and  abetting  the

            possession  of cocaine with intent to  distribute, on board a

            vessel  of the United States and subject to its jurisdiction,

            in violation of 46 U.S.C.    1903(a)(1), (a)(2)(C), & (f) and

            18 U.S.C.   2, was dismissed following the defendants' motion

            for judgment of acquittal pursuant to Fed.R.Crim.P. 29.



                                         -3-
                                         -3-



learning that  an air drop  of contraband was to  take place.



            The plane making  an air drop was not found, but a vessel was



            detected in  the suspected  area, east of  Puerto Rico,  by a



            Customs  NOMAD  maritime  surveillance  and  search  aircraft



            equipped with  a 360-degree radar  ("Omaha 05").   Pilot Mark



            Jackson   first  observed  the  vessel  from  his  window  at



            approximately  3:33  a.m.,  aided by  bright  moonlight.   He



            testified  that the vessel  was traveling without  lights and



            quickly,   leaving   behind  observable   waves.     The  air



            interdiction   officer  who   assisted   him,  Leslie   Robb,



            immediately  located  the  vessel  using  a  forward  looking



            infrared  (FLIR) system.   This equipment senses  heat energy



            emitted by objects and produces  black and white images which



            can be recorded on videotape, as was done here.



                      Omaha 05  tracked the  vessel for  about forty-five



            minutes until it reached Cayo  Luis Pena, an uninhabited  key



            near the  eastern coast of  Puerto Rico.  During  this period



            the vessel occasionally stopped; Officer Robb testified  that



            smugglers often use this tactic  of going "dead in the water"



            (DIW) in order to listen  for surveillance aircraft and avoid



            detection.  Omaha  05 lost track of the vessel at least twice



            during this  period.   Contact resumed  within a  few minutes



            each time, according to the videotape and testimony by Robb.



                      After  the vessel reached  Cayo Luis  Pena, Officer



            Robb observed  at least three  people moving to and  from the


-4-
                                         -4-



shore.   The vessel departed  seven to ten minutes  later, at



            about 4:30  a.m.   It traveled westward  without lights  at a



            gradually increasing speed.  Omaha 05 tracked the vessel  for



            about forty  minutes and then  lost contact at 5:09  a.m. for



            twelve minutes.  Officer Robb explained at trial that he lost



            the  target vessel  when it  went DIW  and his  attention was



            focused on the radar, instead  of the FLIR (a manual tracking



            system),  in order  to direct  a Customs  marine unit  to the



            target vessel.   Robb temporarily  was unable  to detect  any



            vessel in the  area.  He then located the Customs marine unit



            and  a fuerzas  unidas  rapida accion  (FURA)  vessel of  the
                   _______  ______  ______ ______



            Puerto Rican Police  Department, and at 5:21  a.m. reacquired



            the target vessel on the FLIR.  The vessel was less  than one



            mile from the point where  it was lost.  Robb testified  that



            no other vessels were detected in the area.



                      Omaha 05, assisted by a FURA helicopter, guided the



            Customs marine  unit to intercept  the target vessel.   Pedro



            Vicens,  a special  agent and  criminal  investigator on  the



            Customs  boat, testified  that four individuals2  were aboard



            the  twenty-four foot fishing boat which had two seventy-five



            horsepower engines.  The vessel had two large gas tanks built



            into  the area that  customarily stores fishing  equipment or



            bait.  Approaching the vessel, Vicens sensed a strong odor of



                                
            ____________________



                 2 Diogenes Arturo  Marcelino, in whose name the boat was

            registered, entered  a guilty  plea before  the trial  of the

            three defendants-appellants.



                                         -5-
                                         -5-



gasoline.  He  soon observed that the boat  was full of fluid



            and gasoline: the fuel line had been cut, gas was coming from



            the tank,  and individuals aboard appeared to  be bailing out



            gasoline  from the bottom of  the vessel and  moving as if to



            wash something.    He  testified  that washing  the  deck  to



            conceal any  smell  or  residue of  narcotics  was  a  common



            practice of drug smugglers. 



                      The  four  aboard  were   taken  into  custody  and



            transported along with  the vessel to  the police station  at



            Puerto Chico.   Thereafter,  Pilot Jackson  and Officer  Robb



            accompanied  Customs Agents  Vicens  and Hector  Marte (among



            others) by helicopter to Cayo Luis Pena, the uninhabited  key



            at which Omaha 05 had  observed the vessel stop approximately



            three  hours earlier.    There they  searched the  area where



            movement had been detected.  They found nine bales containing



            261 kilograms  of cocaine,  as a  laboratory test  confirmed.



            Upon  return   to  the   station  at   Puerto  Chico,   Marte



            photographed  the vessel and retrieved fibers of plastic, red



            and  yellow  yarn, green  fluorescent  material, and  plastic



            bubble wrapping.   A forensic chemist compared  these samples



            to ones taken  from the wrapped bales found at Cayo Luis Pena



            and  testified that they  had the same  chemical composition.



            Also  found on  the boat  were life  jackets, a  knife, flare



            guns, spark plugs, and damp cloth.  


-6-
                                         -6-



At  the close of the government's case, the defense



            moved for a judgment of  acquittal on both counts pursuant to



            Fed.R.Crim.P. 29.  The district court denied the motion as to



            count  one and  reserved ruling  on  the second  count.   The



            defense  rested without  presenting evidence and  again moved



            for a judgment of acquittal.   The following day the district



            court again denied the motion as to count one, and granted it



            as to  count two.   It instructed the  jury on the  charge of



            aiding and abetting the possession of  cocaine with intent to



            distribute.   A  guilty  verdict  was  returned  against  all



            defendants.


II. Discussion
            II. Discussion



                      Defendants   challenge  the   sufficiency  of   the



            evidence  to support their convictions.   They claim that the



            government failed to show the shared criminal intent required



            for  an  aiding and  abetting  charge.    They add  that  the



            temporary  losses  of tracking  on  the FLIR  system  and the



            weakness  of the  circumstantial evidence connecting  them to



            drug trafficking warrant a reversal of their convictions. 



                      In reviewing these claims, we consider the evidence



            in the record as a whole, including all reasonable inferences



            therefrom, in the light most favorable to the  prosecution in



            order  to ascertain whether a  rational jury could have found



            defendants  guilty beyond  a reasonable  doubt.   See  United
                                                              ___  ______


-7-
                                         -7-



States v. Romero,  32 F.3d 641, 645  (1st Cir. 1994).   In so
            ______    ______



            doing, we defer  to the jury's determinations  of credibility



            and respect its reasonable construction of the evidence.  See
                                                                      ___



            id.   We  note  that "no  premium  is placed  upon  direct as
            __



            opposed to  circumstantial evidence,"  and that  "'individual



            pieces of  evidence, insufficient  in themselves  to prove  a



            point, may in cumulation prove it.'"  United States v. Ortiz,
                                                  _____________    _____



            966 F.2d  707, 711 (1st Cir. 1992) (citations omitted), cert.
                                                                    _____



            denied, 113 S. Ct. 1005 (1993).
            ______



                      Defendants contend that the government had to prove



            that they  had a shared  criminal intent and were  not merely



            present at or aware of a  criminal act.  See Nye & Nissen  v.
                                                     ___ ____________



            United States, 336 U.S. 613, 619 (1949) (a defendant who aids
            _____________



            and  abets must  "in  some sort  associate  himself with  the



            venture,  . .  . participate  in it as  in something  that he



            wishes to bring about") (citing  United States v. Peoni,  100
                                             _____________    _____



            F.2d 401, 402 (2d  Cir. 1938)); United States v.  Francomano,
                                            _____________     __________



            554  F.2d 483,  486 (1st Cir.  1977)  ("mere  presence at the



            scene  and knowledge  that a  crime was  to be  committed" is



            insufficient to show aiding and abetting) (citation omitted).



            They  assert that  no proof was  offered on  the relationship



            between them and the apparent captain (in whose name the boat



            was  registered), between  the  four  aboard  and  the  three



            persons observed offloading at Cayo Luis Pena, or between the



            defendants  themselves.  Moreover, no connection to any plane


-8-
                                         -8-



making an air drop was ever established.  Defendants add that



            upon  interception of the vessel, they permitted Agent Vicens



            to board and cooperated fully.



                      The record, considered as a whole, does not support



            defendants'  argument.   The knowledge  element  of a  charge



            under 



               841(a) "can rarely  be established with  direct evidence."



            United States v. Gonzalez-Torres, 980 F.2d 788, 791 (1st Cir.
            _____________    _______________



            1992).  Circumstantial  evidence has been  held to justify  a



            finding  of criminal  intent on  facts  quite similar  to the



            instant case: i.e., where only a few individuals are aboard a
                          ____



            small boat,  large or  extra gas tanks  are in  place (rather



            than  more typical  bait or  fishing  equipment), the  vessel



            periodically runs without lights and goes DIW, an FLIR system



            tracks the  vessel to the  site where drugs are  later found,



            traces  of material  used to  wrap the  cocaine are  found on



            board,  and a legitimate  alternative purpose for  the voyage



            appears  lacking.   See,  e.g.,  United  States  v.  Morales-
                                ___   ____   ______________      ________



            Cartagena, 987 F.2d  849, 852 (1st Cir. 1993);  United States
            _________                                       _____________



            v. Alvarado,  982 F.2d 659,  661-662 (1st Cir.  1992); United
               ________                                            ______



            States  v. Cuevas-Esquivel,  905 F.2d  510,  515 (1st  Cir.),
            ______     _______________



            cert. denied, 498  U.S. 877 (1990); United  States v. Corpus,
            ____________                        ______________    ______



            882  F.2d 546,  550 (1st  Cir.), cert.  denied, 493  U.S. 958
                                             _____________



            (1989) and  497 U.S.  1009 (1990).   A jury  could reasonably
                   ___



            infer from the evidence that each of the defendants possessed


-9-
                                         -9-



the  requisite  criminal  intent and  aided  and  abetted the



            accomplishment of the offense as charged.3



                      Defendants  attempt to poke  several other holes in



            the prosecution's  case: 1) no  plane making an air  drop was



            found;  2)  the   intercepted  vessel  itself   contained  no



            contraband; 3)  the residue  particles found  on board  could



            have  been tracked  on  by  Agent Marte  after  he helped  to



            collect the  cocaine bales from Cayo Luis Pena, especially as



            he  did  not  note  the  presence  of  any  residue  when  he



            intercepted and boarded  the vessel; 4) Agent Vicens  did not



            document any cut fuel line or gasoline  on deck in his report



            of the incident; 5) no  description of the vessel is provided



            in the audio/videotape;  6) the vessel initially  tracked was



            said  to be  traveling toward  Fajardo  on the  east side  of



            Puerto Rico, whereas Cayo Luis  Pena is northward; and 7) the



            FLIR system lost the suspected  vessel at least three  times,



            including  once for a  twelve-minute period, after  which the



            vessel was found  within one  mile of  its previous  location



            despite testimony as to its capacity for rapid travel.  



                                
            ____________________



                 3   As   the  government   notes,   defendants   do  not

            specifically  challenge  the   sufficiency  of  the  evidence

            relating  to  an  intent  to  distribute.    Proof  beyond  a

            reasonable doubt  of knowing  possession for  the purpose  of

            distribution is  required for a  charge under   841(a).   See
                                                                      ___

            United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir. 1993).
            _____________    ______

            To  the  extent  that  defendants'  challenge  was  meant  to

            incorporate  this aspect of intent, our holding is unchanged.

            Their  intent to distribute  can reasonably be  inferred from

            the large  quantity of  cocaine (261  kilograms), cf.  id. at
                                                              ___  ___

            1165, which was deposited on the uninhabited key.



                                         -10-
                                         -10-



We again find the  above argument unpersuasive when



            assessed in light  of the record as a whole.  With respect to



            the last  three  points alleging  misidentification of  their



            vessel, the jury was free to believe the testimony of Officer



            Robb, who operated the radar and FLIR system and detailed the



            process  by which  Omaha 05  tracked  the vessel.   The  jury



            viewed  much of  the videotape,  including the  twelve-minute



            period  when the  Omaha 05  lost  the vessel.   Its  apparent



            decision  to credit  Robb's  testimony  that  no  other  non-



            governmental vessels  were in the  area at the time  and that



            the same vessel was subsequently  located is a plausible view



            of the evidence.  



                      The jury  also could have reasonably concluded that



            the vessel  changed direction at  some point  in its  voyage.



            The  absence  of  contraband  aboard  is  not  fatal  to  the



            prosecution's case, given substantial evidence connecting the



            vessel  to the  cocaine (e.g.,  the  videotape, the  positive
                                     ____



            match of wrapping samples,  the departure of the  vessel from



            Cayo Luis Pena without lights at an increasing speed, and the



            evidence of  extra fluid  on the vessel  bottom and  the crew



            members'  washing motions).  Cf. Cuevas-Esquivel, 905 F.2d at
                                         ___ _______________



            512,  515 (affirming conviction where no contraband was found



            aboard but  a videotape showed  a tarp being thrown  from the



            ship and bales  floating nearby); Corpus, 882 F.2d at 549-550
                                              ______



            (same, where bales were observed  being thrown from the  ship


-11-
                                         -11-



and floating nearby,  no other vessel was shown  to be in the



            area, and  the vessel bottom  appeared to have  been recently



            washed).    Nor  do  defendants'  other  contentions  warrant



            disturbingthejury'sassessment oftheoverallevidence presented.



                      It is well established that the government need not



            "disprove every reasonable hypothesis  of innocence, provided



            that the  record as  a whole supports  a conclusion  of guilt



            beyond a  reasonable doubt."   Cuevas-Esquivel,  905 F.2d  at
                                           _______________



            514;  Gonzalez-Torres,  980  F.2d  at  790.    We  find  that
                  _______________



            sufficient  evidence  was  presented  to  sustain the  guilty



            verdicts here.4



                      The judgments of conviction are affirmed.
                                                      ________


____________________



                 4  We  have  considered,   in  addition,  the   separate

            contentions made  by defendant Brito  in his brief.   We find

            these contentions to be without merit.  



                                         -12-
                                         -12-