February 23, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 91-2079 UNITED STATES OF AMERICA,
Appellee, v.
ANGEL LUIS MORALES-CARTAGENA, Defendant, Appellant.
No. 91-2080
UNITED STATES OF AMERICA, Appellee,
v. WILFREDO ALVARADO-ORTIZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before Torruella, Circuit Judge,
Campbell, Senior Circuit Judge, and Stahl, Circuit Judge.
Javier A. Morales Ramos and Jeffrey M. Williams with whom Indiano, Williams & Weinstein-Bacal was on brief for appellants. Jeanette Mercado-Rios, Assistant United States Attorney, with whom Daniel F. Lopez-Romo, United States Attorney, and Jose A. Quiles Espinosa were on brief for the United States.
February 23, 1993
CAMPBELL, Senior Circuit Judge. Angel Luis Morales
Cartagena and Wilfredo Alvarado Ortiz were convicted along with co-
defendants Luis Alfredo Alvarado and Juan Eugenio Lorenzi Padilla of
aiding and abetting in the unlawful possession with intent to
distribute approximately 267 kilograms of cocaine aboard a United
States vessel, 46 U.S.C. 1903(c)(1)(D) and (f), 18 U.S.C. 2, and
aiding and abetting in the importation of cocaine into the customs
territory of the United States, 21 U.S.C. 952(a), 18 U.S.C. 2. On
appeal, Morales and Alvarado ask us to reverse their convictions,
alleging an insufficiency of evidence, erroneous jury instructions,
and prosecutorial misconduct. We affirm the convictions.
I. I.
A. Sufficiency of the Evidence
Appellants assert that as there was insufficient evidence of
criminal intent, the district court erroneously denied their Rule
29(a) motions for judgment of acquittal. In reviewing a properly
preserved Rule 29 motion, we examine the evidence and all legitimate
inferences therefrom in the light most favorable to the government to
determine whether a rational jury could have found guilt beyond a
reasonable doubt. E.g., United States v. Gonzalez-Torres, 980 F.2d
788, 790 (1st Cir. 1992); United States v. Clotida, 892 F.2d 1098,
1103 (1st Cir. 1989).
The government argues that appellants waived their Rule 29
motions by presenting evidence after the government concluded its
case-in-chief and by failing to renew the motions at the close of the
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evidence. Were this so, our review would be for plain error only.1
E.g., United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op.
at 6 (1st Cir. Dec. 31, 1992); United States v. Arango-Echeberry, 927
F.2d 35, 37 (1st Cir. 1991); Clotida, 892 F.2d at 1103. However, we
need not decide whether appellants waived their Rule 29 motions. Even
assuming they did not, the evidence was sufficient for a rational jury
to find that appellants were guilty beyond a reasonable doubt.
Appellants urge that "mere presence" at the scene is not
enough to convict a defendant of aiding and abetting in the commission
of a crime. E.g., Clotida, 892 F.2d at 1104. They assert the
evidence merely showed that they were present on a vessel in an area
of the open sea where an air drop of bales of cocaine took place.
They analogize their conviction to that of innocent crew members on
board a sailboat taking part in the Grand Regatta Columbus2 solely
because crew members in another sailboat in the regatta committed a
crime. Appellants' analogy does not wash.
1. We upheld the convictions of co-defendants Luis Alfredo Alvarado and Juan Eugenio Lorenzi Padilla against a challenge to the sufficiency of the evidence under the plain error standard. See United States v. Alfredo Alvarado, Nos. 91-2075, 2076, slip op. at 5-7 (1st Cir. Dec. 31, 1992). The opinion in that case contains a more exhaustive account than we provide here of the relevant facts and circumstances surrounding the convictions of appellants and their co- defendants.
2. The Grand Regatta Columbus was a celebration of the 500th anniversary of Columbus' discovery of America in which hundreds of vessels from dozens of nations took part in a five-month race from Europe to America and back in the spring and summer of 1992. M.E. Malone, CADIZ to Boston; Grand regatta pays homage to Columbus' voyage, Boston Globe, July 5, 1992.
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Rather than being aboard only one of hundreds of vessels
taking part in a regatta, appellants were in one of two vessels over
which a suspect aircraft was seen to hover. Flying at night without
lights and with no flight plan, the aircraft made tight circles about
300 to 500 feet above the two vessels. A Customs Service pilot
following the suspect aircraft testified to having seen moving lights
from the vessels. From this a reasonable jury could infer that the
vessels wished to be visible to the aircraft. Bales of cocaine were
dropped in proximity to the vessels from the aircraft, after which the
vessels began heading north towards the shore with their navigation
lights turned off. At first the two boats traveled together at a
distance of about 100 yards. After the second vessel veered off in a
westerly direction, a police helicopter was directed over the first
vessel, occupied by the appellants. The helicopter was lit and
identified as a police helicopter by the letters "FURA," which were
twelve to sixteen inches long. A police sergeant aboard the
helicopter gestured for appellants to stop. Appellants looked up,
reduced speed, and then accelerated. When a police marine vessel
subsequently approached, appellants' vessel veered off in order, it
might be inferred, to get away. While other explanations were
offered, a jury could reasonably conclude from this conduct that
appellants were conscious of having engaged in criminal activity and
were more than mere inadvertent bystanders at the drug drop. United
States v. Lopez, 944 F.2d 33, 40 (1st Cir. 1991); United States v.
Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir. 1988); United States v.
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Flores Perez, 849 F.2d 1, 3 (1st Cir. 1988); United States v. Alvarez,
626 F.2d 208, 210 (1st Cir. 1980).
The fishing gear found aboard both vessels was wrapped up
and not prepared for fishing. No bait or fish were found on either
vessel. No fishing nets were found in the area. As fishing was
apparently not their purpose, the jury could infer that appellants had
another purpose for their nighttime sojourn on the sea. Although no
cocaine was found aboard appellants' vessel, four bales of cocaine
were discovered on the companion vessel. A connection between the two
vessels was suggested not only by their proximity when first seen but
by evidence that appellant Wilfredo Alvarado Ortiz was related to co-
defendant Luis Alfredo Alvarado. "While innocent association with
those involved in illegal activities can never form the sole basis for
a conviction, . . . the existence of a close relationship between a
defendant and others involved in criminal activity can, as part of a
larger package of proof, assist in supporting an inference of
involvement in illicit activity." United States v. Ortiz, 966 F.2d
707, 713 (1st Cir. 1992) (citing Nye & Nissen v. United States, 336
U.S. 613, 619 (1949)), cert. denied, 61 U.S.L.W. 3479 (1993).
Criminal intent may, of course, be inferred from
circumstantial evidence. E.g., United States v. Gomez-Villamizar, No.
92-1228, slip op. at 9 (1st Cir. Dec. 23, 1992); Ortiz, 966 F.2d at
711; United States v. Rodriguez- Alvarado, 952 F.2d 586, 590 (1st Cir.
1991). Here, numerous factors, including the unlighted, clandestine
airplane maneuvering over the two boats, the lights on the vessels,
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their proximity to the cocaine when dropped, the fact that appellants'
vessel was running without navigational lights, the finding of cocaine
bales on the companion vessel, and the lack of support for their being
engaged in fishing or some other innocent occupation, constituted
substantial evidence from which a jury could infer that appellants
possessed the requisite criminal intent. See Alfredo Alvarado, Nos.
2075, 2076, slip op. at 6-7 (1st Cir. Dec. 31, 1992).
B. Jury Instructions
Appellants contend that the district court's instructions to
the jury were erroneous, misleading, and created impermissible
mandatory presumptions of guilt. Pointing to isolated excerpts from
assorted instructions regarding intent to distribute, possession, and
aiding and abetting, appellants complain that the jury was allowed to
convict appellants for merely being present at the scene of a drug
drop.
We review a district court's charge as a whole, not in
isolated excerpts. E.g., United States v. Hallock, 941 F.2d 36, 42
(1st Cir. 1991); United States v. Boylan, 898 F.2d 230, 244 (1st
Cir.), cert. denied, 111 S. Ct. 139 (1990); United States v. Cintolo,
818 F.2d 980, 1003 (1st Cir.), cert. denied, 484 U.S. 913 (1987).
Viewing the charge in this manner, appellants' arguments have little
force. For example, appellants object to the district court's
definition of possession with intent to distribute. The district
court defined this element as possessing "with intent to deliver or
transfer possession of a controlled substance to another person with
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or without any financial interest in the transaction." We see nothing
wrong in this. See Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, Instruction 45, at III-73 (1991); Federal Judicial Center,
Pattern Criminal Jury Instructions (1987), Instruction 112, at 147.
Appellants contend that the instruction would permit a jury to convict
appellants and their co-defendants for delivering cocaine to the
police. This argument, however, ignores the fact that the district
court clearly and correctly defined the elements of willfulness,
intent, and knowledge elsewhere in the charge. Considering the charge
as a whole, we find nothing that would cause the jury to convict
appellants without finding the requisite criminal intent.
Appellants make a similar argument as to the district
court's definition of constructive possession. According to
appellants, the definition was misleading because the required
intentional aspects were only vaguely and ambiguously defined.
Because appellants failed to make this objection to the charge at
trial, we will reverse only upon a showing of "plain error." E.g.,
United States v. De La Cruz, 902 F.2d 121, 122 (1st Cir. 1990); United
States v. Nazzaro, 889 F.2d 1158, 1166 (1st Cir. 1989); Fed. R. Crim.
P. 30. Appellants have not shown plain error. The district court
defined constructive possession as "knowingly [having] the power and
the intention, at a given time, to exercise dominion or control over a
thing, either directly or through another person or persons." This
definition, which clearly required both knowledge and intent, is
similar to one we have approved in the past. See, e.g., United States
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v. Garcia, Nos. 92-1427, 1428, slip op. at 6 (1st Cir. Feb. 4, 1993);
United States v. Akinola, No. 92-1587, slip op. at 9 (1st Cir. Feb. 2,
1993); United States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir.
1992). Moreover, as already noted, the district court elsewhere in
its charge made clear that, to convict appellants of the offenses
charged, the jury had to find that appellants acted knowingly,
intentionally, and willfully. See Hallock, 941 F.2d at 42
(constructive possession instruction without any mention of knowledge
or intent is not plain error if knowledge and intent are defined
elsewhere in jury instructions). We see no instructional error, plain
or otherwise, that could have confused the jury into convicting
appellants without finding the requisite criminal intent.
Appellants additionally contend that the district court's
opening remarks to the jury on the concept of aiding and abetting
created an impermissible mandatory presumption. During these remarks,
the district court stated that "[a]iding and abetting means when two
or more persons assist each other, basically, in the commission of an
offense, . . . all of them are presumed to be responsible for the
whole acts committed together." This statement, while not a complete
explanation of the concept of aiding and abetting, did not create a
mandatory presumption of guilt. Instead, it merely explained, in a
preliminary fashion, that aiding and abetting is a form of agency in
which the law holds a defendant criminally responsible for the acts
and conduct of another person even though the defendant may not have
personally committed every act constituting the offense alleged. Of
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course, before a defendant may be held criminally responsible as an
aider and abettor, the government must prove that the defendant
"associated himself with the underlying venture, participated in it as
something he wished to bring about, and sought by his actions to make
it succeed." United States v. Clifford, 979 F.2d 896, 899 (1st Cir.
1992); United States v. O'Campo, 973 F.2d 1015, 1020 (1st Cir. 1992)
("In order for aiding and abetting liability to be applicable, . . .
the evidence must establish that the defendant knowingly, willfully
and intentionally sought by his action or presence to make the
principal's criminal transaction succeed."). The district court, in
its subsequent charge, accurately instructed the jury in this regard.
We find no error in the district court's instruction on aiding and
abetting or in any of the other instructions to which appellants
object.3
C. Prosecutorial Misconduct
Appellants' final assertion of error involves alleged
prosecutorial misconduct. Appellants complain that the prosecutor
misstated the evidence during argument of the Rule 29 motion before
the trial judge4 and during closing argument to the jury.5
3. Appellants did not object to the district court's definition of importation, which we held, in their co-defendants' appeal, to be error, but not plain error. See Alfredo Alvarado, Nos. 91-2075, 2076, slip op. at 9-11 (1st Cir. Dec. 31, 1992).
4. Since the jury was not present during the prosecutor's Rule 29 argument, appellants cannot claim that any part of that argument improperly influenced the jury. The statements made to the judge alone were, for the most part, fully supported by the record. Only one seems unsupported. That involved whether appellants' vessel was stationary when the FURA helicopter first approached. We find this
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Appellants' arguments are severely hampered by their failure to have
made contemporaneous objections to the allegedly offensive remarks.
Absence of objection to a prosecutor's remarks limits appellate review
to the plain error standard. E.g., United States v. Panet-Collazo,
960 F.2d 256, 260 (1st Cir.), cert. denied sub nom. Diaz v. United
States, 113 S. Ct. 220 (1992); United States v. Rodriguez-Cardona, 924
F.2d 1148, 1154 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United
States v. Griffin, 818 F.2d 97, 99-100 (1st Cir.), cert. denied, 484
U.S. 844 (1987); Fed. R. Crim. P. 52(b). This standard is not an easy
one to meet. We may not "'consider the ordinary backfires -- whether
or not harmful to a litigant's cause -- which may mar a trial
record.'" United States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir.
1987) (quoting Griffin, 818 F.2d at 100)). Under the plain error
statement so isolated and insignificant that it could not amount to plain error even if it had been uttered in the presence of the jury. See, e.g., United States v. Panet-Collazo, 960 F.2d 256, 260 (1st Cir.), cert. denied sub nom. Diaz v. United States, 113 S. Ct. 220 (1992); United States v. Prouse, 945 F.2d 1017, 1025 (8th Cir. 1991).
5. Appellants also contend that the prosecutor's improper introduction of hearsay evidence constituted prosecutorial misconduct. Appellants complain specifically of the testimony of Customs Service radar operator Richard Cunnicelli that he saw flashing lights in the water as the suspect aircraft approached the two vessels. On cross- examination, Cunnicelli admitted that he never actually saw anything in the water because his eyes were focused on the radar equipment. Instead, he heard the pilot say, "I see lights." Appellants argue that they were prevented from effectively objecting to this testimony by the prosecutor's failure to provide Cunnicelli's rough notes to appellants during discovery. Unlike their co-defendants, however, appellants never requested these notes; nor did they object to the admission of this testimony at trial; nor did they move to strike the hearsay testimony. We are therefore foreclosed from considering this issue on appeal absent plain error, which appellants are unable to establish. See United States v. Serrano, 870 F.2d 1, 11 n.11 (1st Cir. 1989).
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standard, we will reverse a conviction only "'in those circumstances
in which a miscarriage of justice would otherwise result.'" United
States v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir. 1987) (quoting
United States v. Young, 470 U.S. 1, 15 (1985)).
In determining whether a prosecutor's misstatements amounted
to plain error, we consider the prosecutor's comments within the
framework and context of the entire case. Rodriguez-Cardona, 924 F.2d
at 1154; Santana-Camacho, 833 F.2d at 373; United States v. Fuller,
768 F.2d 343, 347 (1st Cir. 1985). Within that context, we must
decide "whether the offending conduct so poisoned the well that the
trial's outcome was likely affected." Mejia-Lozano, 829 F.2d at 274.
We are guided in making this determination by a number of factors,
including the frequency and deliberateness of the prosecutor's
comments, the strength and clarity of the trial judge's instructions,
and the strength of the government's case against the defendant.
United States v. Mateos-Sanchez, 864 F.2d 232, 241 (1st Cir. 1988);
Mejia-Lozano, 829 F.2d at 274.
We need not recount each of the allegedly false statements
made by the prosecutor here. Suffice it to say that we have carefully
scrutinized the record and find that most of these so-called
misstatements involve controverted facts or reasonable inferences that
the prosecutor asked the jury to draw from the facts. There was
nothing improper in either instance. See United States v. Mount, 896
F.2d 612, 625 (1st Cir. 1990); United States v. Tucker, 820 F.2d 234,
237 (7th Cir. 1987).
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Of the dozen or so statements challenged by appellants, only
one deserves further comment. During closing argument, the prosecutor
discussed appellants' attempt to evade apprehension:
It is only as they are about to get caught that all of a sudden one vessel starts to veer away. Which vessel? How interesting that the defendant [Alfredo Alvarado] says, the one that is the lightest. That is the one that went off. That is the one that took off. That was the decoy. It could get away quicker. And sure enough, the FURA helicopter in fact went after the vessel that appeared to be getting away.
To the extent that these remarks suggest that appellants' vessel
veered away, i.e., changed its course from north to west, the remarks
were misleading. It was the co-defendants' vessel that veered off in
a westerly direction, not appellants' vessel. Nevertheless, the FURA
helicopter initially pursued appellants' vessel, which apparently was
lighter and could get away quicker.
The above-quoted comments did not amount to plain error.
They were isolated and, in relation to the body of evidence received
during trial, relatively insignificant. The jury had heard testimony
from a number of government witnesses that appellants' vessel never
veered from its northerly direction before or during the helicopter's
pursuit, whereas their co-defendants' vessel at some point began
traveling in a more westerly direction. This testimony was
corroborated by a videotape showing the tracking and seizure of the
two vessels. The jury also heard several witnesses testify that the
FURA helicopter initially pursued appellants' vessel. Therefore, it
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was unlikely that the jury would be duped or confused by the
prosecutor's misleading statements suggesting that the FURA helicopter
initially chased the vessel that had veered away from its previous
course.
The likelihood of jury confusion was further decreased by
the judge's repeated, explicit instructions to the jury that the
statements and arguments of counsel were not evidence in the case.
Mateos-Sanchez, 864 F.2d at 241; Mejia-Lozano, 829 F.2d at 274; United
States v. Giry, 818 F.2d 120, 133 (1st Cir.), cert. denied, 484 U.S.
855 (1987). Given the isolated nature of the comments, the strength
of the government's case against appellants, and the clarity of the
district court's instructions, it seems most unlikely that the
misleading statements could have affected the outcome of the case.
The plain error standard was not met.
Affirmed.
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