United States v. Felipe Ramirez-Ferrer, United States v. Jorge L. Suarez-Maya, United States v. Raul Troche-Matos

82 F.3d 1131, 1996 U.S. App. LEXIS 5563
CourtCourt of Appeals for the First Circuit
DecidedMarch 27, 1996
Docket94-1016, 94-1017 and 94-1018
StatusPublished
Cited by31 cases

This text of 82 F.3d 1131 (United States v. Felipe Ramirez-Ferrer, United States v. Jorge L. Suarez-Maya, United States v. Raul Troche-Matos) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Felipe Ramirez-Ferrer, United States v. Jorge L. Suarez-Maya, United States v. Raul Troche-Matos, 82 F.3d 1131, 1996 U.S. App. LEXIS 5563 (1st Cir. 1996).

Opinions

TORRUELLA, Chief Judge.

Defendants-appellants (collectively, “defendants”) Felipe Ramirez-Ferrer (“Ramirez-Ferrer”), Jorge L. Suárez-Maya (“Suárez-Maya”) and Raúl Troche-Matos (“Troche-Matos”) appeal to this court their convictions on drug and firearm charges. A panel of this court: 1) affirmed the convictions of all defendants for possession of cocaine with intent to distribute; 2) affirmed the convictions of Suárez-Maya and Ramirez-Ferrer for using a firearm in relation to a drug trafficking offense, but reversed the conviction of Troche-Matos on a similar charge; and 3) reversed the convictions of all defendants for importation of narcotics into the United States. Thereafter, the full court reheard the case en banc. The en banc court now reverses the convictions of all defendants for importation of narcotics into the United States and remands the firearm convictions for further consideration in light of an intervening Supreme Court decision.

I. BACKGROUND

The evidence, taken in the light most favorable to the government, United States v. Abreu, 952 F.2d 1458, 1460 (1st Cir.), cert. denied, 503 U.S. 994, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992), permitted the jury to find the facts that follow. We emphasize the facts pertinent to the importation charge. On March 13, 1993, the Police of Puerto Rico (“POPR”) received an anonymous telephone call. The caller informed the POPR that defendant Suárez-Maya and three other individuals had left for Mona Island, Puerto Rico, in a boat belonging to a relation of Suárez-Maya, and that the four men were going to acquire a load of cocaine and ferry it to the main island of Puerto Rico. Mona Island is one of numerous small islands near Puerto Rico’s main island, and is part of the Municipality of Cabo Rojo, which also includes part of the main island’s southwest corner.1 Mona Island is physically separated [1133]*1133by about 39 miles of water from the main island of Puerto Rico.

Prior to 1989, the boundaries of the United States extended three miles offshore. United States v. Williams, 617 F.2d 1063, 1073 n. 6 (5th Cir.1980). In that year, they were extended by Presidential Proclamation with qualifications to 12 miles. Proclamation No. 5928, 54 Fed.Reg. 777 (1989) (citing the 1982 United Nations Convention on the Law of the Sea, to which the U.S. is a signatory, but which the U.S. had not ratified as of February, 1996). Thus, given the 12-mile limit, to travel from Mona Island to the main island of Puerto Rico requires that a vessel cross international waters.

After verifying that the boat in question was indeed away from its mooring, the United States Customs Service (USCS) and POPR flew to Mona Island on a USCS helicopter. The authorities located the subject boat and Suárez-Maya, accompanied by three other men as described. At approximately 12:30 p.m. the next day, the authorities learned that the boat was leaving Mona Island. The boat was interdicted about one mile off the southwest coast of Puerto Rico.

After the boat was seized, it was found to be carrying about 16 kilograms of cocaine. A subsequent inventory search of the boat turned up a firearm. The seized firearm, a loaded revolver, was found covered by a T-shirt, behind a storage compartment near the location where Ramirez-Ferrer had been seated at the time of the interdiction. The search also revealed evidence linking the vessel to a relative of Suárez-Maya.

On March 31, 1993, a grand jury indicted defendants, charging all three in each of three separate counts. The indictment charged each with possessing approximately 16 kilograms of cocaine with intent to distribute (count 1), 21 U.S.C. § 841(a)(1) (1994); with importing such cocaine into the United States (count 2), id. § 952(a) (1994); and with possessing and carrying a firearm in relation to a drug trafficking crime (count 3), 18 U.S.C. § 924(c)(1) (1994). A superseding indictment corrected the description of the seized firearm in count 3. .

On September 28, 1993, a jury convicted all three defendants on each count. On counts 1 and 2,. relating to possession and importation of cocaine, Suárez-Maya was sentenced to life imprisonment, Ramirez-Ferrer to a term of 240 months, and Troche-Matos to a term of 120 months. The sentences of Suárez-Maya and Ramirez-Ferrer were enhanced under 21 U.S.C. §§ 841(b) and 960(b) on account of prior drug crimes. On count 3, the gun count, each appellant was sentenced to a mandatory minimum term of 60 months to be served consecutively, as required by the statute.

In a decision released April 27, 1995, United States v. Ramirez-Ferrer, 1995 WL 237041 (1st Cir.1995), a panel of this court reversed all three defendants’ importation convictions, reversed Troche-Matos’ firearm conviction, and affirmed the remaining convictions. On June 26,1995, this court agreed to rehear the ease en banc on the issue of the importation statute’s interpretation. Additionally, the court asked the parties to address again the firearms convictions of Ramirez-Ferrer and Suárez-Maya. The en banc court heard oral argument on September 13, 1995. While the case was pending before the en banc court, the Supreme Court on December 6, 1995 issued its opinion in Bailey v. United States, — U.S. —, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), overturning precedent in this and other circuits as to the proper construction of the term “use” in section 924(c)(1).

II. THE POSSESSION CHARGE AND THE FIREARM CHARGE

On the possession charge under count 1, the panel concluded that the evidence was sufficient to show that the defendants knowingly possessed the drugs or aided and abetted their possession. Among other evidence, the testimony permitted the jury to conclude that the drugs were stored in a bag with a broken zipper and that the drugs were plainly visible from outside the bag, easily seen by anyone on the 20-foot boat. The en banc court did not request further argument on this issue.

On the firearm charge, the story is more complicated. Section 924(c)(1) is di[1134]*1134rected against anyone who “uses or carries a firearm during and in relation to a drug trafficking crime” and the district court charged the jury with the language of the statute, defining “use” in accordance with circuit precedent.2 Assuming that each appellant was aware of the revolver, its presence on the vessel made it available for use to protect the drugs. The panel ruled that, assuming knowledge of the firearm, its proximity and potential for use permitted the jury to convict under the so-called “fortress” theory previously adopted by this court and others. See, e.g., United States v. Wilkinson, 926 F.2d 22, 25-26 (1st Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991).

The panel had more difficulty with the question of whether a reasonable jury could find that each of the defendants knew that the gun was present; unlike the drugs, the gun was not in plain view.

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Cite This Page — Counsel Stack

Bluebook (online)
82 F.3d 1131, 1996 U.S. App. LEXIS 5563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-felipe-ramirez-ferrer-united-states-v-jorge-l-ca1-1996.