United States v. Fuentes

877 F.2d 895, 1989 WL 71690
Court of Appeals for the Eleventh Circuit·Decided July 19, 1989·No. No. 87-5991·Published·Cited by 15 cases

Opinion

ORINDA D. EVANS, District Judge:

Defendants/Appellants are seven crew members of a vessel seized by the United States Coast Guard. They appeal their convictions under the Maritime Drug Law Enforcement Act, 46 U.S.C.App. § 1903(a) and (j), and 18 U.S.C. § 2.

[898]*898Around 2:30 A.M. on March 3, 1987, the Coast Guard cutter Cherokee, a ship over 200 feet in length with a 78 man crew, sighted on radar a vessel traveling north in international waters toward the Bahamas. It pursued the vessel, radioed it unsuccessfully and reached it around 5:00 A.M. Coastguardsmen observed an individual on the vessel throw a red suitcase into the ocean. The Cherokee stopped to retrieve the suitcase unsuccessfully, and then returned to the pursuit. By 6:00 A.M., the Cherokee again sighted the vessel. Coast-guardsmen observed individuals throwing brown objects into the water. They spotted between 250 and 400 such objects, which appeared to be bales of marijuana, bobbing in the wake of the vessel. Most of the bales were recovered and destroyed at sea. Some were retained, and were definitively proved to be marijuana.

The name Black Sand was painted on the vessel’s hull, but it flew no flag and bore no home port designation. As the Cherokee pulled near, its crewmembers observed individuals washing down the vessel’s deck.

After coastguardsmen boarded the Black Sand, Appellant Rodriguez-Marquez, through a translator, informed them the boat was either Venezuelan or Bahamian and that it was coming from Panama to an island off the coast of Venezuela to load whiskey and cigarettes for a return trip to Panama. He said a “Gringo” hired all the crewmen and was with them on the boat until 6:00 P.M. on March 2, when he left in a small pleasure craft, taking the keys, registration and charts.

Coastguardsmen found no charts or registration documents on the boat; however, they discovered a folded Venezuelan flag on board. They also found that the radio worked, although the vessel had not responded to the Cherokee's earlier attempts to make radio contact. Less than 500 grams of marijuana were swept from the ship’s several holds.

Coastguardsmen arrested everyone on board and took them to the U.S. Naval Base at Guantanamo Bay, Cuba. A federal grand jury sitting in Miami indicted all seven appellants for conspiracy to possess with intent to distribute and possession with intent to distribute at least 1,000 kilograms of marijuana while on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C.App. § 1903(j) and 46 U.S.C.App. § 1903(a) respectively.1

Defendants were tried by a jury in the federal court for the Southern District of Florida. All were found guilty on both counts. As is required by 46 U.S.C.App. § 1903(g), Defendants were sentenced under the penalty provisions of section 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 960.2 Appellants Rosa-Ibarra, Blanqui-cet-Guzman, Marquez-Rodriguez and Fuentes each received concurrent ten year sentences. Ten years is the minimum sentence permitted by 21 U.S.C. § 960 for possession with intent to distribute 1,000 kilograms of a mixture containing marijuana. Appellants Julio, Garces-Vasquez and Arenas-Arevalo received twenty years on each count, to run concurrently. Twenty years is the minimum sentence permitted by 21 U.S.C. § 960 for possession with intent to distribute 1,000 kilograms of a mixture containing marijuana where the defendant has a prior drug conviction. Each of these defendants had a prior conviction for [899]*899possession with intent to distribute multi-ton quantities of marijuana.

Appellants claim the trial court erred by failing to direct the jury to determine the amount of marijuana involved. They claim the court should have utilized a special verdict form whereby the jury could have made an alternative finding of possession of 100 kilograms of marijuana, as opposed to 1,000 kilograms, once the jury had determined the defendants guilty of the offense of possession with intent to distribute.

The court correctly declined to utilize the special verdict form. Neither 46 U.S.C. App. § 1903(a) nor § 1903(j), the substantive offense statutes involved, mentions a particular quantity of marijuana. This Circuit has recently held that “the precise quantity of marijuana is not an element of the substantive offense defined in 46 U.S.C.App. § 1903(a).” United States v. Mena, 863 F.2d 1522, 1529 (11th Cir.1989). The holding in Mena applies equally to the language of § 19039(j).

Appellants further assert that the court erred in failing to give a lesser included offense instruction. However, the record does not clearly reflect to what instruction Appellants refer. The record contains no written request for such instruction, and neither does it reflect a clear oral request. By definition, possession with intent to distribute 100 kilograms of marijuana is not a lesser included offense with respect to possession with intent to distribute 1,000 kilograms of marijuana, because as noted, the substantive statute does not specify any particular amount.

If Appellants’ argument is that the court should have given an instruction with respect to the offense of simple possession, it is plain that such instruction was not warranted by the evidence. The only quantity referred to in the record which might arguably invoke such an instruction would be the several ounces of marijuana which the coastguardsmen swept from the ship’s holds and which had been doused with diesel fuel, apparently as part of the clean up effort which occurred just before the guardsmen boarded the ship. No rational jury could have found that these scattered remnants constituted a separate lot of marijuana possessed for non-distribution purposes rather than being the remnants of a larger distribution quantity. Therefore, it was not error to fail to give a simple possession charge. See Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973).

Presumably, the trial judge determined at time of sentencing that the evidence had shown the possession of 1,000 kilograms of marijuana or more. The orders of judgment and commitment as to each Appellant reflect, implicitly at least, that he did. As Appellants have not asserted that the court improperly rejected any argument they made at the sentencing hearing regarding the amount of marijuana, and indeed have failed even to furnish a transcript of the hearing, Appellants have abandoned any claim they might have that the court’s determination was erroneous. However, we note that the trial evidence appears to abundantly support a determination that Appellants in fact possessed marijuana well in excess of 1,000 kilograms.3

Defendants also appeal the trial court’s denial of their motion to dismiss for lack of venue. Defendants contend that under 46 U.S.C.App.

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United States v. Fuentes, 877 F.2d 895, 1989 WL 71690 (11th Cir. 1989).

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